Tag: Human Rights

Liguori v Italy: ECHR 11 Dec 2003

Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings

Citations:

64254/01, [2003] ECHR 684

Links:

Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 08 June 2022; Ref: scu.190182

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.

Citations:

57067/00, Times 12-Jan-2004, ECHR 2003-XII, (2004) 39 EHRR 51, [2003] ECHR 688

Links:

Bailii

Statutes:

European Convention on Human Rights 6.1, Naval Discipline Act 1957

Jurisdiction:

Human Rights

Citing:

Cited – Findlay 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 . .
Cited – Ezeh and Connors v The United Kingdom ECHR 9-Oct-2003
The applicants were prisoners subject to disciplinary proceedings. The offences were equivalent to criminal charges in domestic law. They were refused legal assistance, and had additional terms added to their sentences.
Held: The charges . .

Cited by:

Cited – Regina 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 . .
Applied – G.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 . .
Applied – Le 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 . .
Cited – Haase, 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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 08 June 2022; Ref: scu.190177

Kmetty v Hungary: ECHR 16 Dec 2003

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 ; Non-pecuniary damage – financial award ; Costs and expenses award – Convention proceedings

Citations:

57967/00, [2003] ECHR 690

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

SeeAlso – Kmetty v Hungary ECHR 13-Dec-2011
. .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 08 June 2022; Ref: scu.190175

Ukunc and Gunes v Turkey: ECHR 18 Dec 2003

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Not necessary to examine Art. 6-3-c ; Pecuniary damage – claim rejected ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award – Convention proceedings

Citations:

42775/98, [2003] ECHR 702

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 08 June 2022; Ref: scu.190167

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.

Citations:

48843/99, Times 12-Jan-2004, (2004) 39 EHRR 171, [2003] ECHR 686

Links:

Bailii

Statutes:

European Convention on Human Rights 6.1

Jurisdiction:

Human Rights

Citing:

Cited – Findlay 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 . .
Cited – Ezeh and Connors v The United Kingdom ECHR 9-Oct-2003
The applicants were prisoners subject to disciplinary proceedings. The offences were equivalent to criminal charges in domestic law. They were refused legal assistance, and had additional terms added to their sentences.
Held: The charges . .

Cited by:

Cited – Haase, 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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 08 June 2022; Ref: scu.190176

Pezone v Italy: ECHR 18 Dec 2003

Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (exhaustion of domestic remedies) ; Violation of Art. 5-1 ; Violation of Art. 5-5 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award

Citations:

42098/98, [2003] ECHR 695, [2003] ECHR 700, [2003] ECHR 700

Links:

Worldlii, Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 08 June 2022; Ref: scu.190165

UK Waste Management Ltd, Re Application for Judicial Review: CANI 25 Jan 2002

Citations:

[2002] NICA 8, [2002] NI 130

Links:

Bailii

Jurisdiction:

Northern Ireland

Cited by:

Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 08 June 2022; Ref: scu.189650

Nadarajah and Amirhanathan v Secretary of State for the Home Department: CA 8 Dec 2003

The Secretary of State’s published policy was that, if legal proceedings were initiated, removal would not be treated as imminent even if it otherwise was. The Secretary of State also had an unpublished policy, namely that information that proceedings were about to be initiated would be disregarded, however credible that information might be.
Held: The Secretary of State could not rely on an aspect of an unpublished policy to render lawful that which was at odds with his published policy. Lord Phillips of Worth Matravers, MR said: ‘Thus the relevance of Article 5 is that the domestic law must not provide for, or permit, detention for reasons that are arbitrary. Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act 1971 and the Secretary of State’s published policy, which, under principles of public law, he is obliged to follow. These appeals raise the following questions: (1) What is the Secretary of State’s policy? (2) Is that policy lawful? (3) Is that policy accessible? (4) Having regard to the answers to the above questions, were N and A lawfully detained?’

Judges:

Lady Justice Arden Lord Phillips Of Worth Matravers, MR, Lord Justice Dyson

Citations:

[2003] EWCA Civ 1768, [2004] INLR 139

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Regina (Nadarajah) v Secretary of State for the Home Department Admn 2-Dec-2002
The Claimant was a Tamil from Sri Lanka claiming asylum. He was married in 1991; his wife was also Tamil. In 1995 his claim for asylum in Germany failed. What then happened was disputed. The Claimant said that he voluntarily returned to Sri Lanka, . .
See Also – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .

Cited by:

Cited – ID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Cited – SK (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Regina (Konan) v Secretary of State for the Home Department Admn 21-Jan-2004
The claimants alleged that their immigration detention had been unlawful.
Held: Collins J said: ‘Since the detention at least since 24 June 2002 was contrary to the defendant’s own policy as published in Chapter 38, it was unlawful. In so . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 June 2022; Ref: scu.188644

N v Secretary of State for the Home Department: CA 16 Oct 2003

The applicant had come to the UK to seek asylum, but had advanced HIV/AIDS. When her asylum claim failed she sought permission to continue her stay saying that if returned she would not receive proper treatment and would die.

Citations:

[2003] EWCA Civ 1369, [2004] 1 WLR 1182

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appealed to – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .

Cited by:

Appeal from – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 June 2022; Ref: scu.188478

Wierciszewska v Poland: ECHR 25 Nov 2003

ECHR Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses (domestic proceedings) – claim rejected ; Costs and expenses partial award – Convention proceedings

Citations:

41431/98, [2003] ECHR 612

Links:

Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Umek v Slovenia ECHR 8-Jan-2009
The claimant said that the defendant country had failed to provide her with an effective remedy for delay in proceedings before its courts. She had sought damages after being involved in a fire. She began proceedings in 1989, and they were concluded . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 08 June 2022; Ref: scu.188384

Petrini v Italy: ECHR 27 Nov 2003

Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses partial award – Convention proceedings

Citations:

63543/00, [2003] ECHR 621

Links:

Bailii

Statutes:

European Cnvention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 08 June 2022; Ref: scu.188383

Erskine, Regina (on the Application Of) v Lambeth and Another: Admn 14 Oct 2003

Citations:

[2003] EWHC 2479 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 08 June 2022; Ref: scu.187609

Menson v United Kingdom: ECHR 6 May 2003

There had been a racist attack. The victim was set on fire and killed in the street by assailants. His relatives sought compensation. However the assailants were not agents of the state and they were duly prosecuted, convicted and sentenced. No blame attached to state authorities for the killing and no breach of the state’s investigative duty was found.
Held: While certain familiar principles were rehearsed, the complaint was held to be manifestly ill-founded.
‘The Court observes that the applicants have not laid any blame on the authorities of the respondent State for the actual death of Michael Menson; nor has it been suggested that the authorities knew or ought to have known that Michael Menson was at risk of physical violence at the hands of third parties and failed to take appropriate measures to safeguard him against that risk. The applicants’ case is therefore to be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion (see, for example, McCann v United Kingdom (1995) [21 EHRR 97]; Jordan v United Kingdom (2001) [37 EHRR 52]; Shanaghan v United Kingdom, (Application No 37715/97, BAILII: [2001] ECHR 330), judgment of 4 May 2001, ECHR 2001-III (extracts), or in which the factual circumstances imposed an obligation on the authorities to protect an individual’s life, for example where they have assumed responsibility for his welfare (see, for example, Edwards v United Kingdom (2002) [35 EHRR 487]), or where they knew or ought to have known that his life was at risk (see, for example, Osman v United Kingdom (1998) 29 EHRR 245 . . However, the absence of any direct state responsibility for the death of Michael Menson does not exclude the applicability of article 2. It recalls that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see LCB v United Kingdom (1998) 27 EHRR 212] para 36), article 2 para 1 imposes a duty on that state to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions.
With reference to the facts of the instant case, the Court considers that this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results, as in Michael Menson’s case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life.’

Citations:

47916/99, [1998] ECHR 107, (2003) 37 EHRR CD 220, [2003] Inquest LR 146, [2003] Po LR 155

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

Human Rights

Cited by:

Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department (Inquest Intervening) CA 28-Feb-2006
The respondent appealed from orders made as to the conduct of an investigation into an attempted suicide in prison. The judge had severely criticised the appellant’s treatment of the case.
Held: The appeal failed. The court recited the . .
Cited – Reynolds, Regina (on the Application of) v Independent Police Complaints Commission and Another CA 22-Oct-2008
The court was asked to consider whether the IPCC could investigate the circumstances leading to the arrest of a suspect who fell into a coma after being arrested for being drunk. The IPCC appealed, saying that it did not have jurisdiction to . .
Cited – Smith, 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.
Cited – Secic v Croatia ECHR 31-May-2007
The applicant had been attacked and beaten by skinheads shouting racial abuse. He complained that as a Roma, the police had failed through race discrimination properly to investigate his complaint.
Held: The court repeated the statement that . .
Cited – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Coroners

Updated: 08 June 2022; Ref: scu.186853

A, Regina (on the Application of) v Harrow Crown Court and others: Admn 14 Aug 2003

The applicant sought his release from detention in hospital, correction of records at the Crown Court, and confirmation that his detention had infringed his human rights. He had been accused of two assaults, but was found unfit to plead under section 4 by a jury. He was however later made subject to the s37 order.
Held: Following Fairley, the court did not have power to make the order it had. However the earlier order remained valid until revoked.

Judges:

The Honourable Mr Justice Stanley Burnton

Citations:

[2003] EWHC 2020 (Admin)

Links:

Bailii

Statutes:

Offences Against the Persons Act 1861 16, Criminal Procedure (Insanity) Act 1964 4, Mental Health Act 1983 31

Jurisdiction:

England and Wales

Citing:

Cited – Regina 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 . .
Cited – Regina v Fairley CACD 2003
A section 37 order is not available to a court where a defendant has been found unfit to plead, with an additional finding fo fact that he had committed the act. That finding was not a finding of guilt. . .
Cited – Chuck v Cremer 24-Jul-1846
The plaintiff’s solicitor obtained an attachment against the defendant in default of a pleaded defence, disregarding a court order extending the period for filing the defence, which he considered to be a nullity. The order in question had been . .
Cited – Hadkinson v Hadkinson CA 1952
The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 08 June 2022; Ref: scu.185651

London Borough of Harrow v Qazi: CA 3 Dec 2001

The applicant had been a joint tenant of the respondent. His co-tenant had terminated the tenancy. He now challenged the possession proceedings saying that they would deprive him of his home.
Held: The appeal succeeded. The question before the court was ‘whether a former tenant whose tenancy has come to an end by operation of law can, after that time, have a right to a home for the purposes of Article 8 of the Convention’ The court rejected the argument that article 8 is not engaged where a former tenant lacks any legal or equitable right or interest in the house.

Judges:

Arden LJ, Peter Gibson LJ, Mantell LJ

Citations:

[2001] EWCA Civ 1834, [2002] HLR 276, [2001] EWCA Civ 1834

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Appeal from – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 07 June 2022; Ref: scu.185434

AE and FE v Secretary of State for the Home Department: CA 16 Jul 2003

The appellants challenged orders denying them asylum status. The result would be to require them to return home but subject to relocation within a different geographical area.
Held: For the purposes of considering refugee status, the conditions to which they would be returned in a different area were not relevant. They might become relevant when considering whether the return would infringe the claimants human rights, because they would not enjoy the basic notions of civil political and socio-economic human rights. The court emphasised the need to distinguish between: ‘(1) the right to refugee status under the Refugee Convention; (2) the right to remain by reason of rights under the Human Rights Convention; and (3) consideration to the grant of leave to remain for humanitarian reasons.’ and ‘Consideration of the reasonableness of internal relocation should focus on the consequences to the asylum seeker of settling in the place of relocation instead of his previous home (in context that means his home in his country of origin, rather than the place at which he has been living while his application was considered and decided). If it would be ‘unduly harsh’ for the individual applicant to be relocated in a different part of his own country of origin, it would then normally follow that refugee status should be granted.’

Judges:

Lord Justice Ward Lord Justice Simon Brown Lord Philips Of Worth Matravers MR

Citations:

[2003] EWCA Civ 1032, Times 25-Jul-2003, C1/2003/0047, [2003] INLR 475, [2004] QB 531

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for Home Department Immigration Appeals Tribunal ex parte Robinson CA 11-Jul-1997
Where an asylum seeker was seeking to escape from persecution in one area of his home country, the court must ask if an escape to a safe area in his country of origin is available and appropriate. A failure of the country to which an asylum seeker . .

Cited by:

Cited – Hysi v Secretary of State for the Home Department CA 15-Jun-2005
The claimant appealed an order to be returned to Kosovo.
Held: As the son of a gypsy mother and and an Albanian father. As such, he would face persecution if returned if his mixed race parentage became known. If order to return he would be . .
Cited – Secretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.184612

Petition of Gurung (Ramesh) for Judicial Review: SCS 27 Feb 2003

The applicant sought asylum having fled from Nepal. The Home Secretary had made an order for his removal. He said that he had been involved in the political opposition as a student and had accordingly suffered attacks by police.

Judges:

Lord Clarke

Citations:

[2003] ScotCS 49

Links:

Bailii

Jurisdiction:

Scotland

Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.184000

Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar: CA 19 Jun 2003

In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, the following should be considered. First, the claimant’s case in relation to his private life in the deporting state should be examined. Where the essence of the claim is that expulsion will interfere with his private life by harming his mental health, this will include a consideration of what he says about his mental health in the deporting country, the treatment he receives and any relevant support that he says that he enjoys there. Secondly, the court must look at what he says is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy. The third step is to determine whether, on the claimant’s case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed, and the claim is capable of being engaged.

Judges:

Mr Justice Pumfrey Lord Justice Dyson Lord Justice Judge

Citations:

[2003] EWCA Civ 840, [2003] Imm AR 529

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 72(2)(a), European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department, Ex Parte Thangarasa; Same Ex parte Yogathas HL 17-Oct-2002
The applicants were asylum seekers who had been ordered to be returned to Germany, the country to which they had first escaped, for their asylum claims to be dealt with. They objected, asserting that Germany would not deal with their applications in . .
Cited – D v The United Kingdom ECHR 2-May-1997
The applicant, an AIDS sufferer, resisted his removal to St Kitts where lack of medical treatment would hasten his death.
Held: The deportation of a convicted person suffering from Aids to a country with less care facilities was inhuman or . .
Cited – Soering 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 . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Appeal from – Razgar, Regina (on the Application of) v Secretary of State for the Home Department Admn 2002
The claimant challenged the respondent’s certificate that his appeal was manifestly unfounded.
Held: The certificate was wrongly given. . .
Appeal from – Regina (Nadarajah) v Secretary of State for the Home Department Admn 2-Dec-2002
The Claimant was a Tamil from Sri Lanka claiming asylum. He was married in 1991; his wife was also Tamil. In 1995 his claim for asylum in Germany failed. What then happened was disputed. The Claimant said that he voluntarily returned to Sri Lanka, . .

Cited by:

Appeal from – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Atkinson v Secretary of State for the Home Department CA 5-Jul-2004
The applicant sought judicial review of the respondent’s certification under s94 that his cliam for asylum was hopeless. He said that he had acted as an informer against criminal gangs in Jamaica, and that the state of Jamacia could not provide him . .
See Also – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
See Also – Nadarajah and Amirhanathan v Secretary of State for the Home Department CA 8-Dec-2003
The Secretary of State’s published policy was that, if legal proceedings were initiated, removal would not be treated as imminent even if it otherwise was. The Secretary of State also had an unpublished policy, namely that information that . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.183684

Tashin Acar v Turkey: ECHR 6 May 2003

Hudoc Judgment (Preliminary objections) Government

Citations:

26307/95, (2004) 38 EHRR 2, [2003] ECHR 233

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

See Also – Tahsin Acar v Turkey ECHR 8-Apr-2004
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 2 with regard to disappearance ; Violation of Art. 2 with regard to lack of effective investigation ; No violation of Art. 3 ; No violation of . .
Cited – Saunders and Tucker, Regina (on the Application of) v The Association of Chief Police Officers and others Admn 10-Oct-2008
The deceased had been shot by police during an armed siege. His family complained that the Independent Police Complaints Commission had declined to order the officers not to confer with each other before making statements.
Held: The authority . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 June 2022; Ref: scu.181910

R v Her Majesty’s Advocate and Another: HCJ 31 May 2002

Citations:

[2002] ScotHC 67

Links:

Bailii, Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – R v Her Majesty’s Advocate and Another PC 1-Nov-2002
Section 57(2) provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the Convention rights. It is not open to the court if this subsection is breached to assess what the consequences of . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 07 June 2022; Ref: scu.181694

Coppard v The Commissioners of Customs and Excise, Lord Chancellor intervening: CA 9 Apr 2003

The judge, a circuit judge who had been appointed a judge of the TCC, had adjudicated on the claimant’s case in the High Court in the false belief that the appointment allowed him to do so.
Held: The judge had not wilfully closed his eyes to the law, and his mistake was understandable. On established principle, the judge was a judge de facto. The true logic of the doctrine was not only that the acts were validated but also the office. Accordingly, the judge was a properly constituted court for Article 6 purposes.

Citations:

[2003] EWCA Civ 631, Times 11-Apr-2003, Gazette 19-Jun-2003, [2003] EWCA Civ 511, [2003] QB 1428, [2003] 3 All ER 351, [2003] 2 WLR 1618

Links:

Bailii, Bailii

Statutes:

Supreme Court Act 1981 68, European Court of Human Rights 6(1)

Jurisdiction:

England and Wales

Citing:

Cited – Fawdry and Co (A Firm) v Murfitt CA 14-May-2002
The judge at first instance who was ticketed to sit as a judge in the Technology and Construction Court, had been asked to sit as a judge of the High Court to take this case. The appellant said she was acting outside her powers.
Held: The . .
Grant of leave – Coppard v Customs and Excise CA 5-Nov-2002
Application for leave to appeal out of time – granted. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights, Constitutional

Updated: 07 June 2022; Ref: scu.180988

Fuchs v Poland: ECHR 11 Feb 2003

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to proceedings concerning building permit ; Violation of Art. 6-1 with regard to proceedings concerning demolition order ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings

Citations:

33870/96, [2003] ECHR 73

Links:

Worldlii, Bailii

Human Rights

Updated: 07 June 2022; Ref: scu.180501

Klamecki v Poland (No 2): ECHR 3 Apr 2003

ECHR Judgment (Merits and just satisfaction) Violation of Art. 5-3 with regard to the right to be brought promptly before a judge or other officer ; Violation of Art. 5-3 with regard to the length of pre-trial detention ; Violation of Art. 5-4 ; Violation of Art. 8 with regard to correspondence ; Violation of Art. 8 with regard to family life ; No separate issue under Art. 34 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings

Citations:

31583/96, [2003] ECHR 142

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 07 June 2022; Ref: scu.180475

Malescia v Italy: ECHR 3 Apr 2003

ECHR Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
The complainant said that her rights to a fair trial within a reasonable time, and peaceful enjoyment of her possessions had been infringed. A possession order had been made in 1991, but because of failures in the court system, she recovered actual possession only in June 2000.
Held: Breach of 6.1 was established.

Citations:

42343/98, [2003] ECHR 144

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 07 June 2022; Ref: scu.180471

In re McKerr: CANI 10 Jan 2003

The appellant’s son and two others had been shot dead by police officers. There remained considerable controversy over the circumstances. The matter had been taken to the ECHR which had found the enquiry inadequate. The parties now disputed the steps taken to give effect to that decision. The court held that the 1998 is not to be applied retrospectively.

Judges:

Carswell LCJ

Citations:

[2003] NICA 1, [2004] 1 WLR 807

Links:

Bailii

Statutes:

Human Rights Act 1998, European Convention on Human Rights

Jurisdiction:

Northern Ireland

Cited by:

Appeal from – In 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 – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 07 June 2022; Ref: scu.180230

Sheldrake v Director of Public Prosecutions: Admn 24 Feb 2003

The defendant challenged the application of the section, under which he was deemed to have intended to drive a vehicle whilst under the influence of alcohol, unless he could prove it was not his intent to drive, saying this infringed his right to a fair trial.
Held: The section must be read down to comply with the Convention. The burden to be placed on a defendant was the evidential burden only, and not the legal burden. Once he raised the issue, and pointed to some evidence that there was no likelihood of his driving, the burden of proving there was some real risk of him driving must fall on the prosecution. It was not necessary to impose the legal burden of proof on the defendant.

Judges:

Lord Justice Clarke Mr Justice Henriques Mr Justice Jack

Citations:

Times 25-Feb-2003, [2003] EWHC 273 (Admin), Gazette 03-Apr-2003, [2004] QB 487

Links:

Bailii

Statutes:

European Convention on Human Rights 6.2, Road Traffic Act 1988 5(8)

Cited by:

Cited – Attorney General’s Reference No 4 of 2002 CACD 21-Mar-2003
The defendant had been tried for an offence under the Act of being a member of a proscribed organisation, and professing membership of Hamas. At trial the Crown accepted an evidential burden, that the offence had to be read down to comply with the . .
Appeal from – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights, Road Traffic

Updated: 07 June 2022; Ref: scu.179573

Grundy and Co Excavations Ltd and Another, Regina (on the Application of) v Halton Division Magistrates Court: Admn 24 Feb 2003

A reverse legal burden applied to defendants accused of an offence under section 17 of the Forestry Act 1967 which, in specified circumstances, created an absolute offence of felling a tree without a felling licence. Clarke LJ said: ‘It is thus clear that, while the general principles are those set out in Edwards, each case depends upon the construction of the particular statute. The question in each case will be whether the provision concerned is an ‘exception, exemption, proviso, excuse or qualification’ within the meaning of section 101 of the Magistrates’ Courts Act 1980. It is also clear from Hunt, and indeed from the express terms of section 101, that in such a case ‘the burden of proving the exception, proviso, excuse or qualification, shall be on the defendant’.
As I read the decision in Hunt, the House rejected the submission that any burden on the accused should be construed as evidential and not legal . . Lord Griffiths rejected the submission in this way . .
‘My Lords, I am, of course well aware of the body of distinguished opinion that urges that wherever a burden of proof is placed upon a defendant by statute the burden should be an evidential burden and not a persuasive burden, and that it has the support of the 11th Report of the Criminal Law Revision Committee, Evidence (General) 1972 (Cmnd 4991). My Lords, such a fundamental change is, in my view, a matter for Parliament and not a decision for your Lordships’ House.’
It is thus quite clear that where, applying the principles in Edwards and Hunt and the provisions of section 101 of the Magistrates’ Courts Act 1980 there is a burden on the accused, it is a legal burden and not an evidential burden.’

Judges:

Lord Justice Clarke Mr Justice Jack

Citations:

[2003] EWHC 272 (Admin), [2003] 1 PLR 89

Links:

Bailii

Statutes:

Forestry Act 1967 9(1), Magistrates’ Courts Act 1980 101

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Edwards 1975
On a charge of selling intoxicating liquor without a justices’ licence, it is not for the prosecutor to prove that the defendant had no licence but for the defendant to prove that he had. The burden of establishing a statutory exemption by way of a . .
Cited – Regina v Hunt (Richard) HL 1987
The court objected to the insistence on leaving the burden throughout a prosecution on the defendant on the ground that ‘the discharge of an evidential burden proves nothing – it merely raises an issue’. The House emphasised the special nature of . .

Cited by:

Cited – Clarke v Regina CACD 23-Apr-2008
The defendant appealed his conviction for providing immigration services when not qualified to do so. . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 07 June 2022; Ref: scu.179691

AHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B: QBD 26 Feb 2003

An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents had been given, and the concept under the Act of ‘treatment together’. Any interference with the right to family life was proportionate and necessary.

Judges:

The President

Citations:

[2003] EWHC 259 (QB), Gazette 01-May-2003, [2003] 1 FLR 1091

Links:

Bailii

Statutes:

Family Law Act 1986 55A, Human Fertilisation and Embryology Act 1990 28 29

Jurisdiction:

England and Wales

Citing:

Cited – U v W (Attorney-General Intervening) FD 4-Mar-1997
The restriction on the freedom to provide human fertility treatment to licensees of the Authority was not a breach of the EU treaty. There is a particular need for certainty in provisions affecting the status of a child. There is a mental element . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Kroon And Others v The Netherlands ECHR 27-Oct-1994
Neither marriage nor living together were necessarily a requirement for establishing family ties, exceptionally other factors may . . serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’. The . .
Cited – Re B (Parentage) FD 1996
A mother applied for financial provision for her twin children under 1989 Act Sch 1. The father asked whether he was their parent within the Schedule. They had been born by artificial insemination. He accepted that he was the donor of the sperm and . .
Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB CA 6-Feb-1997
At the applicant’s request samples of sperm were taken from her husband hours prior to his death, when he was in a coma.
Held: Sperm cannot lawfully be taken from a comatose man in order later to allow his surviving wife to be artificially . .
Cited – McMichael v United Kingdom ECHR 2-Mar-1995
In the course of care proceedings, medical and social services’ reports were disclosed to the courts, but not to the parents involved.
Held: The courts’ failure to show reports to the parents in care proceedings was a breach of the Convention. . .
Cited – Re H; Re G (Adoption: Consultation of Unmarried Fathers) CA 2001
Not every natural father has a right to respect for his family life with regard to every child of whom he may be the father (see also McMichael v United Kingdom (1995) 20 EHRR 205). The application of Art 8(1) will depend upon the facts of each . .
Cited – Re S (Freeing for Adoption) CA 2002
If parliament always foresaw what possibilities might arise, courts would never have anything to interpret. . .
Cited – Mrs U v Centre for Reproductive Medicine CA 2002
The 1990 Act lays great emphasis upon consent. Scientific techniques developed since the first IVF baby open up the possibility of creating human life in quite new ways bringing huge practical and ethical difficulties. These have to be balanced . .
Cited – Mikulic v Croatia ECHR 7-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Violation of Art. 8; Violation of Art. 13 with regard to the complaint under Article 6-1; Not necessary to examine Art. 13 with regard to the . .
Cited – Re R (A Child) CA 19-Feb-2003
. .
Cited – Regina (Rose and Another) v Secretary of State for Health and the Human Fertilisation and Embryology Authority Admn 26-Jul-2002
Applications were made, challenging the refusal of the Secretary of State for Health, and the Human Fertilisation and Embryology Authority, to institute a system where a child born by artificial insemination could make enquiries as to his or her . .
Cited – Johansen v Norway ECHR 7-Aug-1996
The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
See also – Leeds Teaching Hospitals NHS Trust v Mr and Mrs A, YA, ZA, Mr and Mrs B T Authority QBD 4-Nov-2002
At a fertility clinic, eggs were fertilised with the sperm from the wrong father. It was noticed only because after the birth of the twins, the colour of their skin was different from the mother and putative father.
Held: Difficult issues of . .

Cited by:

See also – Leeds Teaching Hospitals NHS Trust v Mr and Mrs A, YA, ZA, Mr and Mrs B T Authority QBD 4-Nov-2002
At a fertility clinic, eggs were fertilised with the sperm from the wrong father. It was noticed only because after the birth of the twins, the colour of their skin was different from the mother and putative father.
Held: Difficult issues of . .
Cited – Quintavalle v Human Fertilisation and Embryology Authority HL 28-Apr-2005
The parents of a boy suffering a serious genetic disorder sought IVF treament in which any embryo would be tested for its pre-implantation genetic status. Only an embryo capable of producing the stem cells necessary to cure the boy would be . .
Lists of cited by and citing cases may be incomplete.

Family, Health, Human Rights

Updated: 07 June 2022; Ref: scu.179570

Barnfather 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 rights.
Held: Although the offence is one of strict liability, there is no reversal of the burden of proof. Article 6(2) has no bearing on the reduction or elimination of mens rea requirements, and is therefore compatible with offences of strict or even absolute liability. The section engaged article 6.2 but was compliant. Authorities should however be careful before exercising their discretion to prosecute.
Elias J said: ‘I recognise that the penalties are small, being only a fine, and that is a factor which can properly be considered when determining whether an offence of strict liability is justified. However, in my opinion there is nonetheless a real stigma attached to being found guilty of a criminal offence of this nature. It suggests either an indifference to one’s children, or incompetence at parenting, which in the case of the blameless parent will be unwarranted.’

Judges:

Mr Justice Elias, The Honourable Mr Justice Mackay

Citations:

[2003] EWHC 418 (Admin), Times 20-Mar-2003, [2003] 1 WLR 2318

Links:

Bailii

Statutes:

Education Act 1996 444(1), European Convention on Human Rights 6.2

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Regina v Daniel CACD 22-Mar-2002
The defendant appealed a conviction for hiding assets from her receiver following her bankruptcy. He said that recent case law suggested that the burden of establishing the defence under section 352 was evidential only.
Held: The conviction . .
Cited – 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 . .
Cited – Regina v S (Trade Mark Defence) (Roger Sliney v London Borough of Havering) CACD 20-Nov-2002
The defendant alleged that the offence of which had been convicted, under the 1994 Act, infringed his rights under article 6.2 in reversing the burden of proof.
Held: The principle that the duty of proof lay on the prosecution was subject to . .

Cited by:

Cited – Sutton London Borough Council v S and Another QBD 26-Oct-2004
Parents had had charges brought against them by the appellant for failing to ensure the attendance of their child at school dismissed. The authority appealed.
Held: The authority should have considered more carefully whether it was appropriate . .
Cited – Regina 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 . .
Cited – London Borough of Sutton v S Admn 26-Oct-2004
The Borough appealed against acquittal by the magistrates of the defendant parent accused of failure to ensure the regular attendance of their child at school. The child had attended only irregularly. The parents had contacted the school and . .
Cited – Isle of Wight Council v Platt Admn 13-May-2016
The Council appealed by case stated against a decision by magistrates that a parent who took his child out of school to take a holiday hod not failed to ensure that the child attended regularly. The record was otherwise regular and satisfactory.
Lists of cited by and citing cases may be incomplete.

Education, Crime, Human Rights

Updated: 07 June 2022; Ref: scu.179544

In re Kanaris (application for a writ of Habeas Corpus): HL 30 Jan 2003

The defendant faced charges with others on the same indictment. The judge called a preparatory hearing under the 1996 Act, against the others, but held a separate hearing for the defendant, at which he held a similar preparatory hearing for him alone. The defendant now complained that a separate hearing could not be held for different defendants, and that accordingly it was now out of time for him under the 1987 Regulations, and that he should be released.
Held: The judge had been wrong to hold that the defendants could only be arraigned together, and a preparatory hearing held for them all. There was no rule to say that they must be dealt with together. The defendant still retained some rights to apply for bail. Courts should be careful before setting up inflexible rules, and should still bear in mind the need not to deny the defendant the protection of the 1987 Regulations artificially so as to infringe his Article 5 rights.
Lord Hope said: ‘a judge who is minded to order a preparatory hearing in a long and complex case should be careful not to deprive an accused who is in custody of the protection of the statutory custody time limit until it has become necessary for him to do so. Section 32(2)(a) of the 1996 Act enables a judge to exercise the powers under section 31(4) to (7) before the preparatory hearing begins, and thus before arraignment, in a way that would be compatible with the accused’s Convention right. The use of this procedure should enable considerable progress to be made in the preparation and exchange of information before the judge engages in a detailed discussion of how the trial is to be managed, while at the same time preserving to the accused in the meantime the full protection of the statutory custody time limit.’

Judges:

Nichyols of Birkenhead, Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Hutton

Citations:

Times 31-Jan-2003, [2003] UKHL 2, [2003] 1 WLR 443, [2003] 1 All ER 593, [2003] 2 Cr App Rep 1

Links:

House of Lords, Bailii

Statutes:

Prosecution of Offences (Custody Time Limits) Regulations 1987 (1987 No 299) 5(6B), Criminal Procedure and Investigations Act 1996 29 30 32(2)(a), European Convention on Human Rights 5.3

Jurisdiction:

England and Wales

Citing:

Appeal from – Andreas Kanaris v Governor of H M P Pentonville Admn 17-Jan-2002
The defendant sought a writ of habeas corpus, asserting that the custody time limits in his matter had expired before his trial began. An application to extend the limits had to be made before the limit, and had to show proper conduct of the case. . .
Cited – Regina v Southwark Crown Court, Ex parte Customs and Excise Commissioners QBD 1993
The court found that there was one preparatory hearing in existence, and that that had been conducted before Judge Anwyl-Davies QC. But the trial was listed for hearing before Judge Mota Singh QC, simply because of a direction by the presiding judge . .

Cited by:

Cited – H, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 07 June 2022; Ref: scu.178820

R v Her Majesty’s Advocate and Another: PC 1 Nov 2002

Section 57(2) provides that a member of the Scottish Executive has no power to do any act so far as it is incompatible with any of the Convention rights. It is not open to the court if this subsection is breached to assess what the consequences of any particular violation of an individual’s Convention rights should be. Parliament has decided that members of the Scottish Executive, including the Lord Advocate, should have no power to do acts that are incompatible with any of the Convention rights.

Judges:

Lord Rodger of Earlsferry

Citations:

[2002] UKPC 56

Links:

Bailii

Statutes:

Scotland Act 1998 57(2)

Jurisdiction:

Scotland

Citing:

Appeal from – R v Her Majesty’s Advocate and Another HCJ 31-May-2002
. .

Cited by:

Cited – Sinclair v Her Majesty’s Advocate PC 11-May-2005
(Devolution) The defendant complained that the prosecutor had failed to disclose all the witness statements taken, which hid inconsistencies in their versions of events.
Held: The appeal was allowed. It was fundamental to a fair trial that the . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 07 June 2022; Ref: scu.178864

Mitchell and Holloway v The United Kingdom: ECHR 17 Dec 2002

The applicant had become involved in civil proceedings which extended over ten years. They complained of an infringement of their human rights through the delay.
Held: The court had to take account of the complexity of the matter. This had been complex in fact and law, and one party had been obstructive. Nevertheless, some four years had passed between the action being ready for trial, and a date being made available by the respondent. That delay could not be excused by saying the party might have taken alternative steps. The failure to provide resources had denied the applicant’s right to a hearing within a reasonable time.

Citations:

Times 28-Dec-2002, 44808/98, [2002] ECHR 812, [2002] ECHR 818

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6.1

Human Rights, Litigation Practice

Updated: 06 June 2022; Ref: scu.178597

A v The United Kingdom: ECHR 17 Dec 2002

The applicant complained that the absence of legal aid to allow a challenge what had been said about her in Parliament by way of defamation, violated her right of access to court.
Held: The right to absolute parliamentary privilege was within the margin of freedom enjoyed by a nation state. The applicant was not left entirely without remedy, and the freedom of parliament was properly to be protected. As to the availability of legal aid, limited legal advice was available, and a conditional fee arrangement might also have been available. ‘However, the right of access to court 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. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved.’

Citations:

Times 28-Dec-2002, 35373/97, [2002] ECHR 805, (2002) 36 EHRR 917, [2002] ECHR 811

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6 8.1

Cited by:

Cited – Gray v Avadis QBD 30-Jul-2003
The claimant had made complaints against the defendant solicitor to the Office for the Supervision of Solicitors. In answer the defendant made assertions about the claimant’s mental health, and she now sought to bring action iin defamation on those . .
Cited – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
Cited – Westcott v Westcott CA 15-Jul-2008
The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation, Legal Aid, Constitutional

Updated: 06 June 2022; Ref: scu.178596

Venema v The Netherlands: ECHR 17 Dec 2002

A young child aged 11 months was separated from her mother because of fears that the mother was suffering from Munchausen syndrome by proxy and would injure her. The child was returned five months later, following medical reports which found that the child’s arrested breathing had a physical explanation and that there was no sign the mother was suffering from any psychiatric disorder. The court noted that its approach in cases where a child has been taken into care is that it must be satisfied the circumstances justified taking such a step: ‘In this respect, [the court] must have particular regard to whether, in the light of the case as a whole, the reasons adduced to justify the measure were relevant and sufficient such as to allow the conclusion that it was ‘necessary in a democratic society’.
Held: There had been a breach of article 8 because the parents had not been sufficiently involved in the decision-making process. They had not been able to put forward their point of view before the court order was made.
‘The court accepts that when action has to be taken to protect a child in an emergency, it may not always be possible, because of the urgency of the situation, to associate in the decision-making process those having custody of the child. Nor, as the Government point out, may it even be desirable, even if possible, to do so if those having custody of the child are seen as the source of an immediate threat to the child, since giving them prior warning would be liable to deprive the measure of its effectiveness. The court must however be satisfied that the national authorities were entitled to consider that there existed circumstances justifying the abrupt removal of the child from the care of its parents without any prior contact or consultation. In particular, it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to the removal of the child from its family, was carried out prior to the implementation of a care measure.’

Judges:

J-P Costa P

Citations:

35731/97, (2002) 39 EHRR 102, [2002] ECHR 823, [2003] 1 FLR 552

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 8

Cited by:

Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Langley and others v Liverpool City Council and others CA 11-Oct-2005
Families had challenged the removal of their children into the care of foster parents by the respondents. The family father, who was blind, had taken to driving. The respondents appealed findings that they had acted unlawfully and in breach of the . .
Judgment – Venema v The Netherlands ECHR 4-Mar-2010
Execution of judgment . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 June 2022; Ref: scu.178598

E and Others v The United Kingdom: ECHR 26 Nov 2002

The four applicants had been abused by their stepfather, and sought investigation of the local authority for failing to protect them. They had been compensated by the Criminal Injuries Compensation Authority in part, but now sought a remedy from the local authority ombudsman who denied jurisdiction.
Held: Social services should have been aware of the situation, and of the abuser’s history. The pattern of lack of investigation communication and co-operation by them influenced the course of events, and article 3 had been infringed. The Ombudsman’s lack of jurisdiction had no remedy in domestic law, and certain grievances of the complainants were unresolved. Article 13 had been infringed. ‘The Government submitted that it was not correct to assert that this House of Lords decision [in X v Bedfordshire, M v Newham, et al] prevented all claims in negligence against local authorities in the exercise of their child protection duties, and argued that it could not be regarded as beyond doubt that these applicants would have failed as, in the case of these applicants, the social services arguably were negligent in the way they approached operational, as well as policy, matters.’

Citations:

Times 04-Dec-2002, Gazette 16-Jan-2003, 33218/96, [2002] ECHR 763, [2002] ECHR 769

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 3 13

Cited by:

Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Plymouth City Council v HM Coroner for the County of Devon and Another Admn 27-May-2005
The local authority in whose care the deceased child had been held challenged a decision by the coroner not to limit his inquiry to the last few days of the child’s life. The coroner had decided that he had an obligation to conduct a wider enquiry . .
Cited – Van Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Local Government

Updated: 06 June 2022; Ref: scu.178287

Regina (on the Application of Kanagasingham Kariharan and Kanagara) v Secretary of State for the Home Office: CA 30 Jul 2002

The applicants were subject to removal directions following the failures of their applications for asylum had failed. The decisions were made before the Human Rights Act came into effect, but the direction orders were made afterwards. They sought to challenge the directions on Human Rights grounds.
Held: They had a right of appeal since the removal directions were decisions under the Immigration Acts being decisions affecting the applicants right to enter into or remain in the UK. The decisions exercised a discretion, and were freestanding and themselves subject to the Human Rights Act.

Judges:

Lord Justice Auld, Lord Justice Sedley, Lord Justice Arden

Citations:

Times 13-Aug-2002, Gazette 03-Oct-2002, [2002] EWCA Civ 1102, [2003] QB 933

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 65, Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

See also – Kariharan and Another, Regina (on the Application Of) v Secretary of State for Home Department CA 15-Apr-2002
There is a right of appeal against removal directions under section 65 of the 1999 Act on the ground that removal would be in breach of a person’s human rights. Auld LJ was not impressed by an argument that a restrictive interpretation was necessary . .

Cited by:

Cited – BA (Nigeria) v Secretary of State for The Home Department and Others SC 26-Nov-2009
The court was asked whether the expression ‘an asylum claim, or a human rights claim’ in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 06 June 2022; Ref: scu.174435

P, C And S v The United Kingdom: ECHR 16 Jul 2002

The applicants challenged the way in which their newborn children had been removed by the state after birth. S had not had the opportunity of legal representation, after her lawyers had withdrawn. The removal of S’s child was challenged as disproportionate and a breach of the right to family life.
Held: Given the importance of the decision, the denial of legal representation infringed the family’s legal rights. Representation was necessary, and the refusal to allow an adjournment denied a fair trial. The procedure under which a decision was made before the birth of a child to remove it at birth, leading to a probable adoption was draconian and not justified given the alternative possibilities, and was an interference with the right to family life.

Judges:

Costa, Baka, Bratza, Jorundsson, Loucaides, Birsan and Ugrekhelidze, Early

Citations:

Times 16-Aug-2002, 56547/00, [2002] ECHR 599, (2002) 35 EHRR 1075, [2002] ECHR 604

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6.1 8

Jurisdiction:

Human Rights

Cited by:

Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Children, Family

Updated: 06 June 2022; Ref: scu.174384

Pialopoulos And Others v Greece: ECHR 27 Jun 2002

Hudoc Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial award
Hudoc Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial award

Citations:

37095/97, [2002] ECHR 540

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Citing:

See Also – Pialopoulos And Others v Greece ECHR 15-Feb-2001
Hudoc Violation of P1-1; Violation of Art. 6-1; Not necessary to examine Art. 13; Just satisfaction reserved . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 June 2022; Ref: scu.174089

KB and Others, Regina (on the Applications of) v Mental Health Review Tribunal: Admn 23 Apr 2002

Damages were claimed by three mental health patients whose rights under Article 5(4) had been infringed because of inordinate delay in processing their claims to mental health review tribunals.
Held: Article 5.5 did not make an award of damages mandatory. It was complied with provided that it was possible to make an application for compensation; it did not preclude the Contracting States from making the award of compensation conditional upon proof that procedural delay had resulted in damage. Should compensation be awarded where delay has caused frustration and distress? ‘I conclude that there is no ‘clear and constant jurisprudence’ of the European Court on the recoverability of damages for distress under Article 5.5 in the absence of deprivation of liberty. There are two principles applied by the Court: that damages are not recoverable in the absence of deprivation of liberty, and that damages are recoverable for distress which may be inferred from the facts of the case. It follows that this Court must itself determine the principles it is to apply.’ Having regard for the vulnerability of detained mental health patients: ‘Thus, even in the case of mentally ill claimants, not every feeling of frustration and distress will justify an award of damages. The frustration and distress must be significant: of such intensity that it would in itself justify an award of compensation for non-pecuniary damages. In my judgment, an important touchstone of that intensity in cases such as the present will be that the hospital staff considered it to be sufficiently relevant to the mental state of the patient to warrant its mention in the clinical notes.’

Judges:

Stanley Burnton J

Citations:

[2002] EWHC 639 (Admin), [2003] EWHC 193 (Admn), [2004] 1 QB 936

Links:

Bailii

Statutes:

European Convention on Human Rights 5.4 5.5

Jurisdiction:

England and Wales

Citing:

Appealed to – KB v National Health Service Pensions Agency and Secretary of State for Health ECJ 7-Jan-2004
The claimant had for a number of years had a relationship with a trans-sexual. They had been unable to marry because English law would not recognise a marriage. She compained that on her death her partner would be unable to claim the pension awarded . .

Cited by:

Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – P, Regina (on the Application of) v Secretary of State for the Home Department Admn 11-Dec-2003
The applicant was a discretionary life prisoner compulsorily detained in a mental hospital. His tariff had now expired. If not detained under the 1983 Act he would now be entitled to a review. He argued that there should be a joint hearing.
Appeal from – KB v National Health Service Pensions Agency and Secretary of State for Health ECJ 7-Jan-2004
The claimant had for a number of years had a relationship with a trans-sexual. They had been unable to marry because English law would not recognise a marriage. She compained that on her death her partner would be unable to claim the pension awarded . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – Degainis, Regina (on The Application of) v Secretary of State for Justice Admn 3-Feb-2010
The claimant sought damages. He had been released from prison and recalled, but the review of his continued detention was not undertaken as it should have been. The defendant said that the acknowledgement and apology were sufficient just . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 06 June 2022; Ref: scu.172200

McShane 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 died during a riot in Northern Ireland. He was under a hoarding run over by an armoured vehicle. Six years later an inquest had still not been held, civil proceedings remained pending, and an investigation by the Royal Ulster Constabulary found no basis for action.
Held: The Convention required by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The failure to hold a proper inquiry into the death, was an infringement of the right to life under the Convention. The police officers investigating the incident were not independent of the officers implicated in the incident. There was however, no evidence which would entitle a conclusion that any deaths caused by the security services involved the unlawful or excessive use of force by members of the security forces, save where convictions had followed. The police had also in this case improperly put pressure on the applicant’s legal representatives with regard to evidence to be put before the court.

Judges:

M Pellonpaa, President, and Judges Sir Nicolas Bratza, A. Pastor Ridruejo, J. Makarczyk, V. Straznicka, R. Maruste and S. Pavlovschi Section Registrar M. O’Boyle

Citations:

Times 03-Jun-2002, 43290/98, [2002] ECHR 465, [2002] ECHR 469, (2002) 35 EHRR 593

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 2 34

Jurisdiction:

Human Rights

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Coroners

Updated: 06 June 2022; Ref: scu.172160

William Faulkner v The United Kingdom: ECHR 4 Jun 2002

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings

Citations:

37471/97, [2002] ECHR 481

Links:

Bailii

Statutes:

European Convention on Huma Rights 8

Jurisdiction:

Human Rights

Cited by:

See Also – William Faulkner v The United Kingdom ECHR 10-Mar-2011
A single letter had not been sent on from a prisoner to the Scottish Minister of State. A violation of article 8 was found. The interference was not ‘in accordance with the law’ nor ‘necessary in a democratic society’ for any reason permitted by . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 06 June 2022; Ref: scu.172151

Fawdry and Co (A Firm) v Murfitt: CA 14 May 2002

The judge at first instance who was ticketed to sit as a judge in the Technology and Construction Court, had been asked to sit as a judge of the High Court to take this case. The appellant said she was acting outside her powers.
Held: The court considered the comon law doctrine of de facto officers. She was in fact not a judge of the High Court but had acted in good faith, and the parties had accepted her jurisdiction. The parties had received a fair trial before a lawfully constituted tribunal.

Judges:

Lord Justice Ward, Lord Justice Sedley And Lady Justice Hale

Citations:

[2002] EWCA Civ 643, [2003] QB 104

Links:

Bailii

Statutes:

European Convention on Human Rights 6(1)

Jurisdiction:

England and Wales

Citing:

Cited – Adams v Adams 1971
Despite the lack of modern English authority applying the doctrine, it was still part of the English common law, that the acts of a de facto officer were validated. The de facto officer must have some basis for his assumption of office, variously . .
Cited – Pfeifer And Plankl v Austria ECHR 25-Feb-1992
Two of the judges who had acted in Mr Pfeifer’s case also presided at his trial, despite a clear provision of the Code of Criminal Procedure disqualifying them. The Commission dealt with whether the court was ‘established by law’ separately from . .
Cited – Curtin v Barton 1893
(New York) ‘When a court with competent jurisdiction is duly established, a suitor who resorts to it for the administration of justice and the protection of private rights should not be defeated or embarrassed by questions relating to the title of . .

Cited by:

Cited – Coppard v The Commissioners of Customs and Excise, Lord Chancellor intervening CA 9-Apr-2003
The judge, a circuit judge who had been appointed a judge of the TCC, had adjudicated on the claimant’s case in the High Court in the false belief that the appointment allowed him to do so.
Held: The judge had not wilfully closed his eyes to . .
Cited – Baldock v Webster and Others CA 21-Dec-2004
The claimant alleged negligence against his solicitors in having failed to challenge an order made ultra vires by a county court judge.
Held: The common law doctrine of de facto jurisdiction validated the decision of the judge. The recorder . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights

Updated: 06 June 2022; Ref: scu.171248

Khan, Regina (on the Application of) v HM Coroner for West Hertfordshire and Another: Admn 7 Mar 2002

The deceased died in police custody. The coroner refused to leave to the jury possible verdicts of unlawful killing, or death contributed to by neglect, or breach of his right to life. He adjourned the hearing to allow this challenge.
Held: Coroners should be cautious of such adjournments. The jury would now deliver any verdict after a four month delay. The deceased had been involved in a struggle in the station, and lost consciousness, but had not been put in the recovery position for some time. Neglect in coroners’ cases meant failing to take an opportunity to avoid a death. However there was no evidence to support any conclusion that a relationship of causation existed to support a verdict of neglect.

Judges:

Mr Justice Richards

Citations:

[2002] EWHC 302 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Inner London South District Coroner Ex Parte Douglas-Williams CA 30-Jul-1998
A coroner had the right not to leave all possible verdicts to a jury, even including one possibly supported by the evidence, where the overwhelming evidence pointed one way, and possible confusion of jury might be caused by leaving all verdicts to . .
Cited – Regina v Galbraith CCA 1981
Rejection of Submission of No Case to Answer
The defendant had faced a charge of affray. The court having rejected his submission of having no case to answer, he had made an exculpatory statement from the dock. He appealed against his conviction.
Held: Lord Lane LCJ said: ‘How then . .
Cited – Regina v North Humberside and Scunthorpe Coroner ex parte Jamieson CA 27-Apr-1994
The deceased prisoner had hanged himself. He had been a known suicide risk, and his brother said that the authorities being so aware, the death resulted from their lack of care. The inquest heard in full the circumstannces leading up to the death, . .
Cited – Regina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
Cited – Regina (on the Application of Jean Marshall) v Her Majesty’s Coroner for Coventry Admn 22-Oct-2001
The applicant sought judicial review of the verdict of the coroner’s jury that a death had been accidental. The deceased, a schizophrenic died of an overdose of crack cocaine, whilst in police custody. His family sought a verdict of accidental death . .
Cited – Nicholls v Coroner for City of Liverpool Admn 8-Nov-2001
As the deceased was arrested he swallowed something. He was examined by a doctor and denied that he had swallowed drugs, but his condition deteriorated and he died at hospital. The coroner refused to admit the evidence of a professor who was highly . .
Cited – Regina (Dawson) v HM Coroner for East Riding and Kingston upon Hull Admn 2001
. .
Lists of cited by and citing cases may be incomplete.

Coroners, Human Rights

Updated: 05 June 2022; Ref: scu.168731

County Properties Limited v The Scottish Ministers for Judicial Review: IHCS 16 Aug 2001

Judges:

Lord Prosser and Lord Kirkwood and Lord Mackay of Drumadoon

Citations:

[2001] ScotCS 206, [2001] ScotHC 87

Links:

Bailii, Bailii

Statutes:

European Convention on Protection of Human Rights

Jurisdiction:

Scotland

Citing:

Appeal from – County Properties Limited v The Scottish Ministers OHCS 25-Jul-2000
The company applied for planning permission. The Secretary of State called in the application to be decided by a reporter. The applicant complained that this infringed its right to a hearing before an impartial tribunal. Such a person might deal . .

Cited by:

Appealed to – County Properties Limited v The Scottish Ministers OHCS 25-Jul-2000
The company applied for planning permission. The Secretary of State called in the application to be decided by a reporter. The applicant complained that this infringed its right to a hearing before an impartial tribunal. Such a person might deal . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Planning

Updated: 05 June 2022; Ref: scu.168934

Berthill Fox v Regina (No 2): PC 11 Mar 2002

(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all other laws, and guaranteed certain fundamental rights and freedoms. Though it allowed for the possibility of the death sentence for murder, he claimed the sentence was inhuman or degrading punishment or treatment.
Held: The council had already twice held that similar constitutions did not allow for a death penalty which was mandatory. The appeal was allowed, and the case remitted for re-sentencing.

Judges:

Lord Bingham of Cornhill Lord Hutton Lord Hobhouse of Woodborough Lord Millett Lord Rodger of Earlsferry

Citations:

[2002] 2 AC 284, [2002] UKPC 13

Links:

PC, Berthill Fox v. The Qu’ target=’_n’>PC, Bailii, PC

Statutes:

Saint Christopher and Nevis Constitution Order 1983 (SI 1983 No 881)

Jurisdiction:

Commonwealth

Citing:

Cited – Regina v Hughes PC 11-Mar-2002
(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading . .
Cited – Reyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .

Cited by:

Cited – Regina v Hughes PC 11-Mar-2002
(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading . .
Cited – Pilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
Cited – Watson v Regina PC 7-Jul-2004
(Jamaica) The defendant was convicted of two murders from the same incident. The Act provided for the death penalty if he was convicted of a second murder. He appealed the death sentence in the circumstances, and said also that it was . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights, Constitutional

Updated: 05 June 2022; Ref: scu.167755

Regina v Hughes: PC 11 Mar 2002

(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading punishment or treatment under article 5, and the Crown appealed to the Privy Council.
Held: The mandatory death penalty is indeed to be regarded as inhuman or degrading punishment or treatment. The committee which exercised the prerogative of mercy was not an independent tribunal sufficient to save the procedure. The Crown’s appeal was dismissed, and the case remitted for re-sentence.

Judges:

Lord Bingham of Cornhill Lord Hutton Lord Hobhouse of Woodborough Lord Millett Lord Rodger of Earlsferry

Citations:

[2002] UKPC 12, [2002] 2 AC 259

Links:

PC, Bailii

Statutes:

Criminal Code of Saint Lucia 1992 172, Saint Lucia Constitution Order 1978 (SI 1978 No 1901) 5

Jurisdiction:

Commonwealth

Citing:

Applied – Reyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
Cited – Berthill Fox v Regina (No 2) PC 11-Mar-2002
(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all . .

Cited by:

Cited – Berthill Fox v Regina (No 2) PC 11-Mar-2002
(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all . .
Cited – Pilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
Cited – Watson v Regina PC 7-Jul-2004
(Jamaica) The defendant was convicted of two murders from the same incident. The Act provided for the death penalty if he was convicted of a second murder. He appealed the death sentence in the circumstances, and said also that it was . .
Cited – Bally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing, Human Rights, Commonwealth

Updated: 05 June 2022; Ref: scu.167754

I v Finland: ECHR 17 Jul 2008

The processing of information relating to an individual’s private life comes within the scope of article 8 and that personal information relating to a patient ‘undoubtedly belongs to his or her private life’

Citations:

(2009) 48 EHRR 31, 20511/03, [2008] ECHR 623

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 05 June 2022; Ref: scu.272685

Langton, Allen, Regina (on the Application of) v Department for the Environment, Food and Rural Affairs and Another: Admn 17 Dec 2001

The claimants were farmers, who had been made subject to orders under the Act. They had accumulated maggot waste on their land. The second defendant accepted that the waste included material which would be high risk under the Directive. The defendant had entered the claimant’s land to execute works required under the notice, and the claimant argued this interfered with their property rights under the Convention. The maggot waste which had been supplied to him had included other animal wastes.
Held: Neither the Act for the Order allowed any provision for an appeal. Was judicial review a sufficient alternative remedy? Some of the significant decisions predated the Human Rights Act, and the actual procedure adopted allowed representations to be made, and for review if necessary. The Act was compliant.

Judges:

Mr Nigel Pleming QC (Sitting As A Deputy High Court Judge

Citations:

[2001] EWHC Admin 1047

Links:

Bailii

Statutes:

Animal Health Act 1981, Animal By-Products Order 1999, European Convention on Human Rights, Council Directive 90/667/EEC of 27th November 1990.

Citing:

Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – McLellan v Bracknell Forest Borough Council; Reigate Borough Council v Benfield and Another CA 16-Oct-2001
The tenant was issued with a notice to quit for unpaid rent, within the first year, during an ‘introductory tenancy.’ She sought judicial review on the basis that the reduced security of tenure infringed her human rights.
Held: Review was . .
Lists of cited by and citing cases may be incomplete.

Agriculture, Animals, Human Rights, Judicial Review, Administrative

Updated: 05 June 2022; Ref: scu.167368

Interbrew SA v Financial Times Ltd and Others: ChD 19 Dec 2001

The claimant was involved in takeover proceedings. Certain confidential documents were taken, doctored, and released to and published by the defendants who now resisted orders for disclosure of the source.
Held: The court must balance the right of freedom of expression, and the private rights of the claimants. The court should start from an assumption that it would be wrong to order disclosure of the source of a press story, The claimants could succeed only if the disclosure was so important as to override the public interest in protecting journalistic sources in order to ensure free communication of information to and through the press. The damage caused was serious, a criminal offence had been involved, and the claimant had a legitimate need to prevent further such disclosures. The source was to be revealed.

Judges:

Justice Lightman

Citations:

Times 04-Jan-2002, Gazette 27-Feb-2002, [2001] EWHC Ch 471, [2001] EWHC 480 (Ch), [2002] 1 Lloyds Rep 542

Links:

Bailii, Bailii

Statutes:

Contempt of Court Act 1981 10, European Convention on Human Rights

Jurisdiction:

England and Wales

Cited by:

Appeal from – Financial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .
At first Instance – Financial Times Ltd and Others v The United Kingdom ECHR 15-Dec-2009
The claimants said that an order that they deliver up documents leaked to them regarding a possible takeover violated their right to freedom of expression. They complained that such disclosure might lead to the identification of journalistic . .
Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Updated: 05 June 2022; Ref: scu.167322

Regina v Pearce: CACD 11 Dec 2001

The defendant appealed against his conviction for murder. He said that the court had not allowed his alcoholism as a characteristic for the purposes of testing the defence of provocation, and that the evidence of his long standing partner should be treated as equivalent to that of a wife, making her evidence admissible but not compellable.
Held: As to the admission of evidence, that this was within the area of discretion allowed to convention states, and was a proper balance between the need for respect for family life, and the wider needs of the community. As to the alcohol abuse, there was no evidence of it having reached such a stage as to affect his control over how much he drank. The conviction stood.

Judges:

Lord Justice Kennedy, Mr Justice Hughes, And, Mr Justice Penry-Davey

Citations:

Times 21-Jan-2002, Gazette 21-Feb-2002, [2001] EWCA Crim 2834, [2002] 1 Cr App R 39, [2002] 1 WLR 1553

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 80(1), Homicide Act 1957 3

Citing:

Cited – X, Y and Z v The United Kingdom ECHR 22-Apr-1997
The court refused to find that the failure of United Kingdom law to recognise a female to male trans-sexual as the father of a donor insemination child, born to his partner and brought up as their child, was a breach of their rights to respect for . .
Cited – Regina (Director of Public Prosecutions) v Camplin HL 1978
The court considered the direction to be given as to the existence of provocation so as to reduce a charge of murder to one of manslaughter. The reasonable man in the definition should be one with the defendant’s mental condition. ‘The judge should . .

Cited by:

Cited – Bala and Others, Regina v CACD 10-May-2016
The court was asked whether parties to a polygamous marriage recognised in Nigeria could be exempt thereby from a charge as co-conspirators because of s2 of the 1977 Act. The judge had held the marriage invalid after finding that the defendant was . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence, Human Rights

Updated: 05 June 2022; Ref: scu.167064

K K C v The Netherlands: ECHR 21 Dec 2001

Hudoc Judgment (Struck out of the list) Struck out of the list (friendly settlement)
The applicant, a Chechen complained that his proposed expulsion to Russia from the Netherlands would put his life at risk. Whilst in the Netherlands had had been convicted on several occasions of minor criminal offences. The claim was deemed admissible, and settled upon his being granted a residency permit without restrictions.

Judges:

Mrs E Palm, President, Mrs W Thomassen, Mr GaukurJorundsson, Mr R. Turmen, Mr C. Birsan, Mr J. Casadevall, Mr B. Zupancic

Citations:

58964/00, [2001] ECHR 878, [2001] ECHR 887

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Human Rights

Updated: 05 June 2022; Ref: scu.167074

Regina v Secretary of State for the Home Department ex parte R: QBD 29 Nov 2000

An applicant for asylum had had his case rejected and was separated from his family whose similar application had not yet been finally determined, but he remained in close contact with them. He was imprisoned, and on his release ordered to be deported to Argentina. He complained, successfully that the effect would be to destroy any chance of family life. It was held that the effect of deporting him without waiting for the result of his wife’s application was disproportionate in the effect it would have on his family life. No order was made on an undertaking from the Home Secretary to await that decision.

Citations:

Times 29-Nov-2000

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 05 June 2022; Ref: scu.88643