Tag: Human Rights

Norwood v United Kingdom: ECHR 16 Nov 2004

(inadmissible)

Citations:

(2004) 40 EHRR SE 111, [2004] ECHR 730

Links:

ECHR

Statutes:

European Convention on Human Rights 17

Jurisdiction:

Human Rights

Citing:

See Also – Norwood v Director of Public Prosecutions Admn 3-Jul-2003
The appellant a BNP member had displayed a large poster in his bedroom window saying ‘Islam out of Britain’. He was convicted of an aggravated attempt to cause alarm or distress. The offence was established on proof of several matters, unless the . .

Cited by:

Cited – Director of Public Prosecutions v Collins HL 19-Jul-2006
The defendant had made a series of racist and abusive calls to the office of his local MP. The prosecutor appealed a refusal to convict under the 1984 (now the 2003) Act. The defendant had argued that the messages had been offensive, but not grossly . .
Cited – Abdul and Others v Director of Public Prosecutions Admn 16-Feb-2011
The defendants appealed against convictions for using threatening, abusive or insulting words or behaviour or disorderly behaviour . . within the hearing or sight of a person likely to be caused harassment, alarm or distress. He had attended a . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 20 May 2022; Ref: scu.243372

Regina v Sherwood, ex parte The Telegraph Group plc and Others: CACD 12 Jun 2001

When a court considered ordering a restriction on reporting of a case until after it was concluded, it had a three stage test to apply. First, would the reporting create a not insubstantial risk of prejudice. If there was no such risk, an order could not be made. Second, would an order reduce or remove the threat, and could the threat of harm be achieved by some lesser order. Only then could a court come to ask whether the degree of risk which might be run outweighed the competing duty to provide an open system of justice This was a case in which it had been necessary to order a split trial, and in addition to other factors the later trial may have been prejudiced by reporting of the first, and the order was properly made.
Longmore LJ said: ‘It is clear that the duty of the Court of Appeal when exercising this jurisdiction is not merely to review the decision of the trial judge who made the order under challenge, but rather to come to its own independent conclusions on the material placed before it’

Judges:

Longmore LJ

Citations:

Times 12-Jun-2001, Gazette 12-Jul-2001, [2001] EWCA Crim 1075, [2001] 1 WLR 1983

Links:

Bailii

Statutes:

Contempt of Court Act 1981 4(2), Criminal Justice Act 1988 159, European Convention on Human Rights 6 10

Jurisdiction:

England and Wales

Cited by:

Cited – A and Others, Regina v; Regina v The Crown Court at the Central Criminal Court ex parte A Times Newspapers Ltd etc CACD 13-Jan-2006
The defendant was to be charged with offences associated with terrorism. He had sought stay of the trial as an abuse of process saying that he had been tortured by English US and Pakistani authorities. The judge made an order as to what parts of the . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Media, Human Rights, Criminal Practice

Updated: 19 May 2022; Ref: scu.88666

Regina v Charles, Regina v Tucker: CACD 20 Feb 2001

Charles had absconded on the day he was convicted of robbery shortly before the summing up. He was arrested over a year later and sentenced. He gave instructions to his solicitors to advance and renew his applications for leave to appeal conviction and the necessary extension of time. Tucker had absconded two days before he was convicted of sexual assaults and he remained unlawfully at large at the time of the hearing before the Court. His solicitors submitted grounds of appeal against conviction and maintained that they were still in touch with him and had his authority to proceed.
Held: Courts should allow some flexibility in dealing with appeals out of time by defendants convicted in their absence after absconding. The former more rigorous approach of R v Jones should not be followed in the light of the re-inforced need for a fair trial.

Judges:

Rose VP CACD LJ, Hooper, Goldring JJ

Citations:

Times 20-Feb-2001, [2001] EWCA Crim 1755, [2001] 2 Cr App R 15

Links:

Bailii

Statutes:

Human Rights Act 1998

Cited by:

Cited – Suchedina v Regina; similar CACD 27-Oct-2006
Four defendants appealed convictions in money laundering cases. The first defendant operated a money exchange through which substantial volumes of cash were moved, but claimed that he believed the money to have been honestly acquired.
Held: . .
Cited – Okedare, Regina v CACD 27-Feb-2014
The court heard applications for leave to appeal on behalf of applicants who had either absconded or disappeared.
Held: The court considered whether the lawyers filing the appeals had authority, whether express or implied. ‘we are satisfied . .
Applied – Riley and Others, Regina v CACD 1-Nov-2012
Two of the applicants had absconded. One of them Bradley absconded during his first trial, and was convicted in his absence at a re-trial. He sought to persuade the Court that grounds of appeal lodged on his behalf by counsel and solicitors who . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 19 May 2022; Ref: scu.88408

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

The defendant sought judicial review of his court-martial and of the confirming officers. He said the court should have heard that he committed the offence whist intixicated after taking an anti-malarial drug. The court dd not explain why it had found no causal connection beween the treatment and the offence.
Held: There is no over-riding principle of law that reasons must be given for a decision in disciplinary decisions, but fairness will often require them to be given. Does ‘fairness require in this case that reasons should have been given both as to why the Court reached the conclusion that there was no causal connection and why it decided that the sentence of imprisonment was required rather than some lesser sentence which would not have had the same dire consequences for the Applicant? The answer to that question must be in the affirmative. Are there public interest reasons why reasons should not be required? The only public interest reasons . . . advanced relied upon drawing analogies with other judicial bodies. I accept . . . submissions . . . that the examples which he gave are not analogous.’

Judges:

Lord Bingham of Cornhill LCJ, Hooper J

Citations:

Times 17-Dec-1997, [1997] EWHC Admin 1136

Links:

Bailii

Statutes:

Army Act 1955 70, Armed Forces Act 1996, Rules of Procedure (Army) 1972 (SI 1972/316) 76(1)

Citing:

Cited – Regina v Civil Service Appeal Board, Ex parte Cunningham CA 1991
The court considered the effect of a disciplinary board failing to give reasons. The absence of any right to appeal may be a factor in deciding that reasons should be given. If it is ‘important that there should be an effective means of detecting . .
Cited – Regina v Guppy and Another CACD 8-Mar-1994
Court of Appeal (Criminal Division) may hear (but not require) evidence in person from an appellant. . .
Cited – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
Cited – Lloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
Cited – Regina v Universities Funding Council ex parte Institute of Dental Surgery QBD 30-Jul-1993
When considering whether a disciplinary board should have given reasons, the court may find the absence critical ‘where the decision appears aberrant’. ‘the giving of reasons may among other things concentrate the decision-maker’s mind on the right . .
Cited – Regina v Mayor, Commonalty and Citizens of the City of London, ex parte Matson CA 18-Aug-1995
The court considered the need to give reasons for the election of Aldermen. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Natural Justice, Armed Forces

Updated: 19 May 2022; Ref: scu.87364

Regina (Pearson Martinez and Hirst) v Secretary of State for the Home Department and Others; Hirst v Attorney-General: QBD 17 Apr 2001

A law which removed a prisoner’s right to vote whilst in prison was not incompatible with his human rights. The implied right to vote under article 3 was not absolute, and states had a wide margin of appreciation as to how and to what extent the right should be limited, provided that the conditions should not curtail the rights to such an extent as to remove their effectiveness, and should only be imposed in pursuit of a legitimate aim, and should not be disproportionate.

Judges:

Lord Justice Kennedy

Citations:

Times 17-Apr-2001, Gazette 07-Jun-2001, [2001] EWHC Admin 239

Links:

Bailii

Statutes:

Representation of the People Act 1983 3 (1), European Convention on Human Rights 3

Cited by:

Appeal from – Hirst v The United Kingdom (No. 2) ECHR 30-Mar-2004
(Commission) The prisoner alleged that the denial of his right to vote whilst in prison was disproportionate. He was serving a life sentence for manslaughter.
Held: The denial of a right to vote was in infringement of his rights and . .
Appeal from – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights, Elections, Prisons, Elections, Human Rights

Updated: 19 May 2022; Ref: scu.85999

Regina (Wardle) v Leeds Crown Court: HL 24 May 2001

The defendant had been held in custody awaiting committal on a murder charge. An additional charge of manslaughter was added. The defendant argued that this did not constitute a new offence so as to allow an extension of custody time limits.
Held: The issue was the actual information laid before the magistrates and whether the second one constituted a different offence. If it did, the custody time limits restarted in the absence of some abuse. The regulations did not infringe the defendant’s human right to liberty.
Lord Hope said that before having recourse to section 3 one must first be satisfied that the ordinary construction of the provision gives rise to an incompatibility.

Judges:

Lord Slynn of Hadley Lord Nicholls of Birkenhead Lord Hope of Craighead Lord Clyde Lord Scott of Foscote

Citations:

Gazette 24-May-2001, Times 13-Mar-2001, [2001] UKHL 12, [2001] 2 All ER 1, [2001] 2 Cr App Rep 20, [2001] 2 WLR 865, (2001) 165 JPN 327, [2001] ACD 82, (2001) 165 JP 465, [2001] HRLR 29

Links:

House of Lords, Bailii

Statutes:

Prosecution of Offences (Custody Time Limits) Regulations 1987 (1987 No 299) 4, Human Rights Act 1998 3

Jurisdiction:

England and Wales

Cited by:

Cited – ANS and Another v ML SC 11-Jul-2012
The mother opposed adoption proceedings, and argued that the provision in the 2007 Act, allowing a court to dispense with her consent, infringed her rights under Article 8 and was therefore made outwith the powers of the Scottish Parliament.
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Magistrates, Human Rights

Updated: 19 May 2022; Ref: scu.86017

Regina v The General Medical Council, ex parte Arpad Toth, Dr David Jarman Interested Party: QBD 29 Jun 2000

A complaint to the General Medical Council should be heard in public unless there was some particular and pressing circumstance. Openness was required to maintain the confidence of the public in the profession, and complainants had a legitimate expectation of a public investigation. Where a practitioner continued in practice, the screeners should be reluctant to disallow continuance of a complaint where there was any doubt at all about the need to proceed.

Citations:

Times 29-Jun-2000, Gazette 06-Jul-2000, [2000] EWHC Admin 361, [2000] 1 WLR 2209

Links:

Bailii

Cited by:

Cited – Henshall v General Medical Council and others CA 13-Dec-2005
The claimant had lodged a complaint against a medical practitioner. The preliminary proceedings committee had accepted evidence from the doctor, but had not given the complainant opportunity to see it and comment upon it.
Held: the rules must . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health Professions

Updated: 19 May 2022; Ref: scu.85265

Parochial Church Council of Aston Cantlow and Wilmcote With Billesby, Warwickshire and Another: ChD 7 Feb 2000

A lay rector could be liable for the physical upkeep of the chancel of the church by virtue of the Act, and such liability was not removed by the new Human Rights Act. Such liability could exist whether or not he had notice of the liability when purchasing land which had been part of the rectorship, and whether or not he was a lay or spiritual rector. Such an imposition may well not be capable of being set aside under the new Act when it comes into force. The law relating to chancel repairs did not involve a deprivation of possessions. The liability to repair the chancel is one of the incidents of ownership of land allotted under the inclosure award in lieu of tithe or other rectorial property. It is an unusual incident not amounting to a charge on the land, not limited to the value of the land and in imposing a personal liability on the owner of the land, but it cannot be distinguished from the liability which would attach to the owner of land which is purchased subject to a mortgage, restrictive covenant or other incumbrance created by a predecessor in title.

Judges:

Ferris J

Citations:

Gazette 28-Apr-2000, Times 30-Mar-2000

Statutes:

Chancel Repairs Act 1932 5, Human Rights Act 1998 5

Jurisdiction:

England and Wales

Citing:

Cited – Attorney-General v Dean and Chapter of Ripon Cathedral ChD 1945
Uthwatt J said: ‘The law is one, but jurisdiction as to its enforcement is divided between the ecclesiastical courts and the temporal courts’ . .

Cited by:

Appeal from – Wallbank and Wallbank v Parochial Church Council of Aston Cantlow and Wilmcote With Billesley, Warwickshire CA 17-May-2001
The defendant owned land subject to an inclosure award of 1743, in exchange for other land which had made the owner a lay rector. The land was subject to the burden of a duty to maintain the chancel of the parish church. The defendants had been . .
At first instance – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Land, Ecclesiastical

Updated: 19 May 2022; Ref: scu.84588

Memory Corporation v Sidhu (No 2): CA 3 Dec 1999

Where a party applied to court for an ex parte order, counsel had direct duties to the court, and also the supporting legal team and clients had continuing and overlapping duties. There was little to be gained by trying to analyze these things too closely to apportion blame. Here counsel had applied to and misadvised the court on the practice, and documents produced were unreliable and possibly from an unlawful source. Where a defending party risked contempt proceedings, and was ordered to file affidavit evidence in respect of that matter, any claim for privilege against self-incrimination should be made before the affidavit is made. It was inappropriate to be asked first to file the affidavit, and then to ask the court to inspect and decide. The privilege was available to be exercised in contempt proceedings within the same proceedings as the main action.
Mummery LJ said that: ‘It cannot be emphasised too strongly that in an urgent without notice hearing for a freezing order as well as for a search order or any other form of interim injunction, there is a high duty to make full, fair and accurate disclosure of material information to the court and to draw the court’s attention to significant factual, legal and procedural aspects of the case. It is the particular duty of the advocate to see that the correct legal procedures and forms are used, that a written skeleton argument and properly drafted order are prepared by him personally and lodged with the court before the oral hearing, and that at the hearing the court’s attention is drawn by him to unusual features of the evidence adduced, to the applicable law and to the formalities and procedure to be observed.’
Robert Walker LJ discussed the apparent gathering of evidence by unlawful means and said that this has not in general led to its exclusion under the English law of evidence. It was far from obvious that concerns of this nature ‘should be added to the heavy responsibilities already undertaken by lawyers who are making a without notice application, except perhaps in circumstances where the evidence in question is of central importance to the application’. Even when the evidence is of central importance, for example evidence relating to the sale of contraband goods in a case of piracy of intellectual property rights, trap orders and other conduct involving impersonation or deception have been commonplace in the Chancery Division for a century or more, and do not seem to have attracted censure.

Judges:

Mummery LJ, Robert Walker LJ

Citations:

Times 15-Feb-2000, Gazette 27-Jan-2000, Times 03-Dec-1999, [2000] EWCA Civ 9, [2000] 1 WLR 1443

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

On Appeal from – Memory Corporation Plc and Another v Sidhu ChD 21-May-1999
Where counsel proposing an asset freezing order fails to mention a case relevant to the issue, the order need not thereby be discharged. This is as against a failure to disclose a material fact, which would lead to a discharge of the order. . .
Approved – Dubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .

Cited by:

See Also – Memory Corporation Plc, Datrontech Hong Kong Limited v Sukhbir Singh Sidhu, Sunsar Limited ChD 3-Nov-1999
. .
Cited – John Louis Carter Fourie v Allan Le Roux and others CA 7-Mar-2005
The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and . .
Cited – Fourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
Cited – Franses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, Human Rights, Contempt of Court

Updated: 19 May 2022; Ref: scu.83628

Jersild v Denmark: ECHR 20 Oct 1994

A journalist was wrongly convicted himself of spreading racial hatred by quoting racists in his material.
Held: Freedom of expression is one of the essential foundations of a democratic society. The safeguards to be afforded to the press are of particular importance. ‘Whilst the press must not overstep the bounds set, inter alia, in the interest of ‘the protection of the reputation and rights of others’, it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’.’ The freedom of the press to exercise its own judgment in the presentation of journalistic material was emphasised: ‘At the same time, the methods of objective and balanced reporting may vary considerably, depending among other things on the media in question. It is not for this court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. In this context the court recalls that article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed.’
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings

Citations:

Times 20-Oct-1994, (1994) 19 EHRR 1, [1994] ECHR 33, 15890/89

Links:

Worldlii, Bailii

Cited by:

Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Connolly v Director of Public Prosecutions Admn 15-Feb-2007
The defendant appealed against her conviction under the Act for having sent indecent or grossly offensive material through the post in the form of pictures of an aborted foetus sent to pharmacists. She denied that they were offensive, or that she . .
Cited – Animal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL 12-Mar-2008
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . .
Cited – Callaghan v Independent News and Media Ltd QBNI 7-Jan-2009
callaghan_inmQBNI2009
The claimant was convicted in 1987 of a callous sexual murder. He sought an order preventing the defendant newspaper publishing anything to allow his or his family’s identification and delay his release. The defendant acknowledged the need to avoid . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – MGN Limited v United Kingdom ECHR 18-Jan-2011
The applicant publisher said that the finding against it of breach of confidence and the system of success fees infringed it Article 10 rights to freedom of speech. It had published an article about a model’s attendance at Narcotics anonymous . .
Cited – Core Issues Trust v Transport for London Admn 22-Mar-2013
The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to . .
Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Updated: 19 May 2022; Ref: scu.82518

Foxley v United Kingdom: ECHR 20 Jun 2000

A bankrupt was suspected of disposing of his assets to avoid a confiscation order. The trustee in bankruptcy obtained an order for the bankrupt’s post to be diverted to her whilst he was in prison. She opened all post and copied it before forwarding it to the bankrupt. This included correspondence with his legal advisers. The order and her practice infringed the bankrupt’s human rights insofar as no distinction was made with respect to correspondence protected by legal privilege, and insofar as the order continued in effect after the bankrupt’s discharge. ‘The Court can see no justification for this procedure and considers that the action taken was not in keeping with the principles of confidentiality and professional privilege attaching to relations between a lawyer and his client. It notes in this connection that the Government have not sought to argue that the privileged channel of communication was being abused; nor have they invoked any other exceptional circumstances which would serve to justify the interference with reference to their margin of appreciation.’

Citations:

Times 04-Jul-2000, (2001) 31 EHRR 637, 33274/96, [2000] ECHR 223, [2000] ECHR 224

Links:

Worldlii, Bailii

Statutes:

Insolvency Act 1986 371, European Convention on Human Rights

Cited by:

Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency, Legal Professions

Updated: 19 May 2022; Ref: scu.80653

Director of Public Prosecutions v Wilson: QBD 21 Mar 2001

The use of an admission obtained under compulsion that a driver was the driver, at the time when a car was being driven so as to commit an offence, was not an infringement of the defendant’s human rights, and there was no requirement of a notice that the admission obtained might be used in evidence.

Citations:

Times 21-Mar-2001, Gazette 03-May-2001

Statutes:

Road Traffic Act 1988 172(2)(b)

Road Traffic, Human Rights

Updated: 19 May 2022; Ref: scu.80057

Crummock (Scotland) Ltd v Hm Advocate: HCJ 9 May 2000

A company was charged with causing a contamination of the water over a large area, and the jury was drawn from that same area, and therefore might contain members who had drunk the water alleged to have been contaminated. The issues surrounding the impartiality of a jury were different from those about a judge. They were selected at random from a wide area. It was fallacious to view them as potential complainants.

Citations:

Times 09-May-2000

Statutes:

European Convention on Human Rights

Criminal Practice, Human Rights, Scotland

Updated: 19 May 2022; Ref: scu.79701

Curley v United Kingdom: ECHR 28 Mar 2000

A prisoner was sentenced to be detained during her majesty’s pleasure, but given a tariff which expired in 1987. Reviews of his continued detention did not lead to his release. He complained that the system of reviews by a Parole Board whose recommendations for release were subject to approval by the Home Secretary did not allow his detention to be reviewed by a court with the power to order his release. This was a breach of his rights, as also was the absence of any system for compensating him.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Violation of Art. 5-5; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings

Citations:

Times 05-Apr-2000, 32340/96, [2000] ECHR 122, [2000] ECHR 122, (2001) 31 EHRR 14, [2000] Prison LR 65, (2000) 31 EHRR 401

Links:

Worldii, Bailii

Statutes:

European Convention on Human Rights article 5.4

Cited by:

Judgment – Curley v The United Kingdom ECHR 10-Mar-2011
(Execution of judgment) – Examination closed on satisfaction . .
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 19 May 2022; Ref: scu.79714

Regina v Marylebone Magistrates Court ex parte Andrew Clingham: Admn 20 Feb 2001

The council received a report by a housing trust about the behaviour of the defendant, then aged 16, who lived on an estate within the Borough, and after investigating applied for an anti-social behaviour order. Some witness statements contained first hand evidence, but the application was primarily based on hearsay evidence contained in records of complaints received by the trust and in police crime reports with from allegations of verbal abuse and serious criminal activities including assault, burglary, criminal damage and drug dealing dating from April 1998 to December 2000. Hearsay evidence was served under the 1999 rules. The defendant said the proceedings were criminal.
Held: Hearsay evidence is admissible on an application for an anti-social behaviour order. There is nothing in the jurisdiction of Human Rights to make such evidence inadmissible in civil proceedings, and its admission would not automatically make a criminal trial unfair. The weight to be attached to such evidence must vary according to the circumstances, and the magistrates could sensibly look at the Civil Evidence Act considerations. Such evidence alone might be insufficient for an order, but it should have some weight in most proceedings.
The council sought an anti-social behaviour order against the applicant. He challenged the admission against him of hearsay evidence.

Judges:

Schiemann LJ, Poole J

Citations:

Times 20-Feb-2001, [2001] EWHC Admin 582

Links:

Bailii

Statutes:

Magistrates Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 681, Crime and Disorder Act 1998 1, Civil Evidence Act 1995 1 9(2), Human Rights Act 1998 3

Citing:

Appealed to – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .

Cited by:

Appeal from – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights, Magistrates, Evidence

Updated: 19 May 2022; Ref: scu.79228

Casado Coca v Spain: ECHR 24 Feb 1994

The right to freedom of expression is not personal to the individual and is capable of being enjoyed by corporate legal persons, and commercial advertising, such as that of the claimants, is protected by Article 10(1). However, the control of lawyers’ right to advertise their practices, was not a breach of the right of free expression.

Citations:

Times 01-Apr-1994, [1994] ECHR 8, 15450/89, (1994) 18 EHRR 1

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 10(1)

Jurisdiction:

Human Rights

Cited by:

Cited – North Cyprus Tourism Centre Ltd and Another, Regina (on the Application Of) v Transport for London Admn 28-Jul-2005
The defendants had prevented the claimants from advertising their services in North Cyprus on their buses, and justified this saying that the Crown did not recognise the Turkish Republic of North Cyprus since it was the result of an unlawful . .
Cited – Core Issues Trust v Transport for London Admn 22-Mar-2013
The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights, Media

Updated: 19 May 2022; Ref: scu.78930

Cable et Al v United Kingdom: ECHR 18 Feb 1999

The English Courts martial system did not give a fair trial because the role of the convening officer meant that the tribunal was not sufficiently independent or impartial since the officer might outrank the court and could dissolve the proceedings.
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings.

Judges:

L Wildhaber P

Citations:

Times 11-Mar-1999, (2000) 30 EHRR 1032, 24436/94;24582/94;24583/94;, [1999] ECHR 8

Links:

Bailii

Statutes:

European Convention on Human Rights

Human Rights, Armed Forces, Criminal Practice

Updated: 19 May 2022; Ref: scu.78815

Cachia and Others v Faluyi: CA 11 Jul 2001

The words of the section had to be construed so as to make it compatible with the human rights convention. Accordingly the term ‘action’ in the Act was to be interpreted to mean an action where a writ was served. Children whose mother had been killed, had the human right to claim compensation for their loss of dependency. Whilst it was legitimate to impose certain restrictions on access to the courts, the effect of the words of the statute had not been considered or intended, and the court would read the section so as to make it compatible with the Act.

Citations:

Times 11-Jul-2001, Gazette 19-Jul-2001

Statutes:

Fatal Accidents Act 1976 2(3)

Jurisdiction:

England and Wales

Personal Injury, Limitation, Human Rights

Updated: 19 May 2022; Ref: scu.78816

Camelot Group Plc v Centaur Communications Plc: QBD 15 Jul 1997

Human rights law is no aid in protecting a journalist against an order requiring the return of confidential documents, even though this might identify the source of leak.

Citations:

Times 15-Jul-1997, [1999] QB 124

Statutes:

Contempt of Court Act 1981

Cited by:

Cited – 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 . .
Appeal from – Camelot Group plc v Centaur Communications Limited CA 23-Oct-1997
An order for a journalist to disclose the name of an employee disclosing his employer’s information, may be made where there was a need to identify a disloyal employee. Here drafts of accounts had been released to embarrass the company. The . .
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment, Media

Updated: 19 May 2022; Ref: scu.78858

Burghartz v Switzerland: ECHR 22 Feb 1994

It was sex discrimination to prevent a husband using his and his wife’s surnames, but not to prevent the wife doing the same. The use of name is a means of personal identity and of linking it to a family.
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); Violation of Art. 14+8; Not necessary to examine Art. 8; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings

Judges:

R. Ryssdal, P

Citations:

Times 08-Apr-1994, [1994] ECHR 2, 16213/90, (1994) 18 EHRR 101

Links:

Worldlii, Bailii, HUDOC

Cited by:

Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Human Rights

Updated: 18 May 2022; Ref: scu.78749

Biggin Hill Airport Ltd v Bromley London Borough Council: ChD 9 Jan 2001

Applicants sought the right to fly from the airport. Local residents sought to intervene on the basis that if the lease controlling such rights was construed in such a way as to allow such an extension, this would interfere with their human rights. The lease had to be construed against the factual background as at the time it was entered into, and the Act could not affect that interpretation, and there was no basis for implying any such term into the lease. The local authority was not acting unlawfully in granting a declaration in the terms it proposed.

Citations:

Gazette 18-Jan-2001, Times 09-Jan-2001

Statutes:

Human Rights Act 1998

Landlord and Tenant, Human Rights, Transport

Updated: 18 May 2022; Ref: scu.78394

BBC, Petitioners (No 2): HCJ 13 Jun 2000

A ban on the televising of the Lockerbie trial was not a breach of the broadcasters rights under article 10. The fact that arrangements had been made for the trial to be relayed by television under strict conditions to relatives of the deceased, but not for general use was not determinative. The exercise by the Lord Advocate after discussion with the US government of his discretion to allow such transmission, had not been demonstrated to give rise to a devolution issue.

Citations:

Times 13-Jun-2000

Statutes:

European Convention on Human Rights

Citing:

See Also – BBC, Petitioners HCJ 11-Apr-2000
The absence of a jury from a criminal trial was not sufficient of itself to set aside the rule against the broadcasting of criminal proceedings. To set aside the rule, the onus was on the broadcaster to justify the departure from the rule and to . .
Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Scotland

Updated: 18 May 2022; Ref: scu.78301

Attorney General of Trinidad and Tobago v Phillip: PC 9 Nov 1994

A pardon which had been give to insurrectionists was invalid, since it purported to excuse future conduct also, but there had been no duress shown. There is no general power to excuse a crime before it is committed. Lord Woolf: ‘A pardon must in the ordinary way only relate to offences which have already been committed ….However while a pardon can expunge past offences, a power to pardon cannot be used to dispense with criminal responsibility for an offence which has not yet been committed . This is a principle of general application which is of the greatest importance. The state cannot be allowed to use a power to pardon to enable the law to be set aside by permitting it to be contravened with impunity.’ The prosecution of a person who in exchange for his co-operation has received an undertaking, promise or representation that he would not be charged is capable of amounting to an abuse of process.
Lord Bridge: ‘However while a pardon can expunge past offences, a power to pardon cannot be used to dispense with criminal responsibility for an offence which has not yet been committed. This is a principle of general application which is of the greatest importance. The state cannot be allowed to use a power to pardon to enable the law to be set aside by permitting it to be contravened with impunity.’

Judges:

Lord Woolf

Citations:

Independent 19-Oct-1994, Times 11-Oct-1994, Gazette 09-Nov-1994, [1995] 1 AC 396

Citing:

See Also – Lennox Phillip and Others v Director of Public Prosecutions of Trinidad and Tobago and Another; Same vCommissioners of Prisons PC 19-Feb-1992
(Trinidad and Tobago) There had been an insurrection, and many people were taken prisoner by the insurrectionists. To secure their release, the President issued an amnesty to all the insurgents, including the applicant. After surrendering, the . .

Cited by:

Cited – Regina (Pretty) v Director of Public Prosecutions, and Another, Medical Ethics Alliance and Others, interveners Admn 18-Oct-2001
The function of the Director’s office is statutory, and his powers are those laid down. He is not able to excuse possible criminal conduct in advance, and nor could he establish a policy of not applying certain statutory provisions. The Suicide Act . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Commonwealth

Updated: 18 May 2022; Ref: scu.77948

Attorney General’s Reference (No 2 of 2001): CACD 12 Jul 2001

When assessing whether the defendant’s right to a trial within a reasonable time had been infringed, the court should look as from the date at which he was charged, or served with a summons, and not from the date of the first interview. Although a suspect could suffer material prejudice from the date of the interview, that would often not be the case. The previous law was that a stay for abuse of process should be granted only in exceptional cases and where the defendant could show that because of the delay he would suffer serious prejudice which denied him the chance of a fair trial. Under Human Rights law, proceedings should still only be stayed where the conduct of the prosecution amounted to an abuse of the proceedings of the courts.

Judges:

Lord Woolf CJ, Wright and Grigson JJ

Citations:

Times 12-Jul-2001, Gazette 23-Aug-2001, [2001] 1 WLR 1869, [2001] EWCA Crim 1568

Statutes:

European Convention on Human Rights Art 6.1

Citing:

Followed – Attorney General’s Reference (No 1 of 1990) CACD 3-Jun-1992
The jurisdiction to stay criminal proceedings on the ground of delay is exceptional, even where the delay was unjustifiable, and a stay should rarely be imposed in the absence of any fault on the part of the complainant or prosecution, and should . .

Cited by:

Cited – Plinio Galfetti v Regina CACD 31-Jul-2002
The defendant had been convicted of various offences of violence but then was then to be held in a secure mental hospital. A place was not available, and an order only became available some nine months later, at which time, he argued that the order . .
Cited – Regina v HM Advocate and The Advocate General for Scotland PC 28-Nov-2002
(The High Court of Justiciary) The prosecution had accepted that the matter had been the subject of unreasonable delay, but wished to continue. The defendant sought a plea in bar, on the basis that continuing would infringe his rights.
Held: . .
Cited – Regina v Ashton, Lyons and Webber CACD 6-Dec-2002
The appellants had appealed sentences for conspiracy to murder. There had been an inordinate delay between leave to appeal having been granted, and the appeal being heard.
Held: The appellants’ rights had been infringed by the delay, and they . .
Cited – Aaron v The Law Society (the Office of the Supervision of Solicitors) QBD 13-Oct-2003
The appellant challenged an order suspending him from practice as a solicitor for two years. He had previous findings of professional misconduct in failing to pay counsels’ fees. In the course of later disciplinary proceedings he was found to have . .
Cited – Lloyd v Bow Street Magistrates Court Admn 8-Oct-2003
The defendant had been convicted and made subect to a confiscation order in 1996. A final order for enforcement was made in late 2002. The defendant said the delay in the enforcement proceedings was a breach of his right to a trial within a . .
Appeal from – Attorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
Cited – Regina v S (Crime: delay in prosecution) CACD 6-Mar-2006
The defendant appealed his conviction saying that the prosecution should have been stayed permanently because of the delay in bringing the case. He had been sentenced to 7 years imprisonment for sexual assaults committed in the 1970s.
Held: A . .
Cited – Crown Prosecution Service v Bentham Admn 2003
At the trial of a substantive claim for declarations of property rights in the context of confiscation proceedings under the 1986 Act, two interested parties sought to dismissal or stay of the claims dismissed for delay. The proceedings went back to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 18 May 2022; Ref: scu.77964

BBC Scotland, McDonald, Rodgers and Donald v United Kingdom: ECHR 23 Oct 1997

The court accepted the compatibility with article 10 of restrictions on the publication of material which may prejudice the outcome of court proceedings

Citations:

Unreported, 23 October 1997, 34324/96

Statutes:

European Convention on Human Rights 10

Cited by:

Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 18 May 2022; Ref: scu.564190

Core Issues Trust v Transport for London: Admn 22 Mar 2013

The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to be based on the resondent’s policies. The respondent had previously allowed an advertisement by an organisation campaining for gays. It was suggested thet the Mayor had improperly intervened to prevent the advertisement being accepted.
Held: The respondent’s policy met the requirement for legal certainty, and was prescribed by law. As a public body, subject to the equality duty, TfL was under a positive obligation to protect the rights of gays. In my judgment, this was a legitimate aim under Article 10(2).
‘TfL’s decision was justified and proportionate in pursuit of the legitimate aim of protecting the rights of others. Therefore the refusal was not a breach of the Trust’s rights under Article 10(1). The fact that TfL had applied its Advertising Policy inconsistently and partially and refused the Trust a right to respond was outweighed by the countervailing factors, described above, which made it proportionate to refuse to display the advertisement.’

Judges:

Lang DBE J

Citations:

[2013] EWHC 651 (Admin), [2013] PTSR 1161, [2013] PTSR 1161

Links:

Bailii

Statutes:

Human Rights Act 1998 7, European Convention on Human Rights 34, Greater London Authority Act 1999 154, Equality Act 2010 149 12(1)

Citing:

Cited – Casado Coca v Spain ECHR 24-Feb-1994
The right to freedom of expression is not personal to the individual and is capable of being enjoyed by corporate legal persons, and commercial advertising, such as that of the claimants, is protected by Article 10(1). However, the control of . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Cited – Muller And Others v Switzerland ECHR 24-May-1988
The Court considered a complaint that Article 10 had been infringed by the applicant’s conviction of an offence of publishing obscene items, consisting of paintings which were said ‘mostly to offend the sense of sexual propriety of persons of . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Wingrove v The United Kingdom ECHR 25-Nov-1996
The applicant had been refused a certification certificate for his video ‘Visions of Ecstasy’ on the basis that it infringed the criminal law of blasphemy. The Court found that the offence was prescribed by law and served the legitimate aim of . .
Cited – Murphy v Ireland ECHR 10-Jul-2003
A pastor attached to an evangelical protestant centre based in Dublin wished to broadcast an advertisement during the week before Easter 1995, but the broadcast was stopped by the Independent Radio and Television Commission because section 10(3) of . .
Cited – Observer and Guardian v The United Kingdom ECHR 26-Nov-1991
The newspapers challenged orders preventing their publication of extracts of the ‘Spycatcher’ book.
Held: The dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the court. This is . .
Cited – Otto Preminger Institute v Austria ECHR 1994
In the context of religious opinions and beliefs it was pointed out that there is under article 10 an obligation to avoid as far as possible expressions that are gratuitously offensive to others ‘and thus an infringement of their rights’. The Court . .
Cited – Jersild v Denmark ECHR 20-Oct-1994
A journalist was wrongly convicted himself of spreading racial hatred by quoting racists in his material.
Held: Freedom of expression is one of the essential foundations of a democratic society. The safeguards to be afforded to the press are . .
Cited – VGT Verein Gegen Tierfabriken v Switzerland ECHR 28-Jun-2001
The applicant association dedicated itself to the protection of animals, from animal experiments and industrial animal production. In reaction to television commercials broadcast by the meat industry it prepared a TV advertisement contrasting the . .
Cited – Giniewski v France ECHR 31-Jan-2006
The applicant had been convicted of public defamation towards the Christian community on the basis of an article suggesting that Catholicism contained the seeds of the Holocaust.
Held: While the article may have shocked and offended, it was a . .
Cited – Vajnai v Hungary ECHR 2010
The applicant wore a red star which was proscribed because of its association with communism.
Held: ‘a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling – real or imaginary – cannot be . .
Cited – X v The United Kingdom ECHR 20-Dec-1974
Commission – Inadmissible – Article 8 of the Convention : Right to respect for correspondence. Detention after conviction. Complaint not pursued
Article 9 of the Convention : Buddhist prisoner not permitted to send out material for . .
Cited – Arrowsmith v United Kingdom ECHR 12-Oct-1978
(Commission) Article 9 is apt to include a belief such as pacifism, which could be a philosophy. However, Miss Arrowsmith distributed leaflets to soldiers, urging them to decline service in Northern Ireland. This was dictated by her pacifist views. . .
Cited – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Local Government

Updated: 18 May 2022; Ref: scu.471961

British Broadcasting Corporation (BBC) and Another, Regina (on The Application of) v Ahmad: Admn 11 Jan 2012

The BBC wished to interview the prisoner who had been detained pending extradition to the US since 2004, and now challenged decision to refuse the interview.
Held: The claim succeeded. The decision was quashed and must be retaken. If ever any case justified exceptional treatment, this was one. He had been held without trial for seven years, and had been seriously assaulted on his arrest. Whatever he was accused of had taken place in the UK, and the CPS had decided that there were insufficent grounds for a prosecution. The policy itself allowed exceptions to the writing only communications rule, and ‘even after giving appropriate weight to the views of the Secretary of State, the decision . . constitutes a disproportionate interference with the right to freedom of expression in article 10. In the circumstances of this particular case, the justification for that interference has not been ‘convincingly established’, as the jurisprudence on article 10 requires.’

Judges:

Hooper LJ, Singh J

Citations:

[2012] EWHC 13 (Admin)

Links:

Bailii, Judiciary

Jurisdiction:

England and Wales

Citing:

Cited – West Virginia State Board of Education v Barnette 14-Jun-1943
(United States Supreme Court) Jackson J said: ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Bladet Tromso and Stensaas v Norway ECHR 20-May-1999
A newspaper and its editor complained that their right to freedom of expression had been breached when they were found liable in defamation proceedings for statements in articles which they had published about the methods used by seal hunters in the . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – Regina v Secretary of State for the Environment, ex parte Powis CA 1981
Material not available to the decision maker should not normally be admitted on an application for a judicial review of that decision. The court described three categories of acceptable new evidence: (1) evidence to show what material was before the . .
Cited – Regina v Secretary of State For The Home Department, Ex Parte Launder HL 13-Mar-1997
The question arose as to whether or not the decision of the Secretary of State to extradite the applicant to Hong Kong would have amounted to a breach of the European Convention on Human Rights. Although the Convention was not at that time in force . .
Cited – Bamber v United Kingdom ECHR 11-Sep-1997
The Commission declared inadmissible a complaint that Standing Order 5 G 2B infringed Article 10. The Order precluded prisoners from contacting the media by telephone except in exceptional circumstances. The Standing Order satisfied the requirement . .
Cited – Nilsen v United Kingdom ECHR 9-Mar-2010
The applicant had been convicted of the most serious offences including several violent murders, and was held under a whole life tarriff. He wished to publish his autobiography from prison.
Held: The application was inadmissible. He had . .
Cited – Bergens Tidende And Others v Norway ECHR 2-May-2000
A newspaper complained that its rights under Article 10 of the Convention had been infringed by a libel action which a cosmetic surgeon had successfully brought against it in respect of defamatory articles it had published saying he was incompetent. . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Lists of cited by and citing cases may be incomplete.

Prisons, Media, Human Rights

Updated: 18 May 2022; Ref: scu.450213

McDaid v United Kingdom: ECHR 1996

(Commission) Decision on admissibility. Residents of Derry applied alleging inter alia that there had been a breach of the procedural obligation under article 2 to hold a full investigation into the ‘Bloody Sunday’ killings in 1972. They alleged inadequacies in the Widgery Report, an investigation conducted by the RUC and the inquest that had been held into the deaths. Attempting to get round the six month time limit for bringing a complaint they submitted that this was a continuing obligation.
Held: The Commission rejected that submission: ‘In so far as the applicants complain that they are victims of a continuing violation to which the six month is inapplicable, the Commission recalls that the concept of a ‘continuing situation’ refers to a state of affairs which operates by continuous activities by or on the part of the state to render the applicants victims (see, eg, [Montion v France (1987) 52 DR 227; Hilton v United Kingdom (1988) 57 DR 108; A P v United Kingdom (Application No 24841/94) (unreported) 30 November 1994]). Since the applicants’ complaints have as their source specific events which occurred on identifiable dates, they cannot be construed as a ‘continuing situation’ for the purposes of the six month rule. While the Commission does not doubt that the events of ‘Bloody Sunday’ continue to have serious repercussions on the applicants’ lives, this however can be said of any individual who has undergone a traumatic incident in the past. The fact that an event has significant consequences over time does not itself constitute a ‘continuing situation’ ‘.

Citations:

(1996) 85-A DR 134

Statutes:

European Convention on Human Rights 2

Cited by:

Cited – McCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
See Also – McDaid And Others v The United Kingdom ECHR 10-Oct-2000
. .
See Also – McDaid v United Kingdom; Ward v United Kingdom; Giles v UK; Leece v UK; Shorters v UK; Thwaites v UK ECHR 17-Oct-2000
The court had previously found that the applicants’ rights to a fair trial had been infringed in the UK martial courts, in particular through the role of the convening officer. The court hearing that a friendly settlement had been reached with the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 18 May 2022; Ref: scu.439812

Warner v Poland: ECHR 15 Nov 2001

Citations:

Unreported, 15 November 2001, 26760/75

Jurisdiction:

Human Rights

Cited by:

Cited – Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust QBD 1-Aug-2011
The claimant who had been dismissed by the defendant, asked the court to find that the defendant had failed to meet its contractual obligations as to the procedure to be followed, and that therefore the court declare the dismissal void.
Held: . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 18 May 2022; Ref: scu.442515

In Re N (Leave to withdraw care proceedings): 2000

Citations:

[2000] 1 FCR 258

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Cited by:

Cited – Payne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 18 May 2022; Ref: scu.417809

Juncal, Regina (on the Application of) v Secretary of State for the Home Department and others: CA 25 Jul 2008

The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and defendants themselves, from persons whom it would be unfair to try because they have insufficient understanding of the trial process. A legal system must have a procedure for dealing with that situation. There was a right of appeal under the Criminal Appeal (Northern Ireland) Act 1980 against a finding of unfitness to plead . . The procedure provided was not capricious or arbitrary, and was followed.

Judges:

Pill, Baker, Richards LJJ

Citations:

[2008] EWCA Civ 869

Links:

Bailii

Statutes:

Mental Health (Northern Ireland) Order 1986, Mental Health (Scotland) Act 1984 81(1), Criminal Procedure (Insanity) Act 1964, European Convention on Human Rights 5

Jurisdiction:

England and Wales

Citing:

Appeal from – Juncal, Regina (on the Application of) v Secretary of State for the Home Department and others Admn 19-Dec-2007
The claimant sought damages, saying that he had been unlawfully detained when found unfit to plead in 1997.
Held: The claim failed. (a) The 1964 Act, and its Scottish equivalent, did not authorise anything that was arbitrary. (b) It followed . .
Cited – X v United Kingdom ECHR 5-Nov-1981
(Commission) The application was made a patient, restricted under the 1959 Act. A mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the . .
Cited – Regina v M and Others CACD 5-Oct-2001
The court considered the nature of the detention of a defendant when he was found unfit to plead. Rose LJ said: ‘The old orders available to the courts [including the hospital order with restrictions] do not include any punishment or any order that . .
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – Johnson v The United Kingdom ECHR 24-Oct-1997
Mr Johnson awaited trial for crimes of violence. He was diagnosed mentally ill, and on conviction made subject to a hospital order, and restricted without limit of time. He made progress, but was not discharged or re-classified. At a fourth tribunal . .
Cited – Regina (Kenneally) v Snaresbrook Crown Court Admn 27-Nov-2001
That a mentally disturbed defendant may cause embarrassment by his behaviour in court was no reason for him not to be brought to court to be present when an order detaining him under the Act was to be made. The words of section 51(5) must be . .
Cited – Regina v Grant CACD 22-Nov-2001
A jury had found, under section 4(5) of the 1964 Act as amended, that the defendant was unfit to plead. The court considered section 5 of the 1964 Act.
Held: A judge of the Crown Court is obliged under the section to make a mandatory order . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – B (A Minor) v Director of Public Prosecutions HL 23-Feb-2000
Prosecution to prove absence of genuine belief
To convict a defendant under the 1960 Act, the prosecution had the burden of proving the absence of a genuine belief in the defendant’s mind that the victim was 14 or over. The Act itself said nothing about any mental element, so the assumption must . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Cited – Regina v Grant CACD 22-Nov-2001
A jury had found, under section 4(5) of the 1964 Act as amended, that the defendant was unfit to plead. The court considered section 5 of the 1964 Act.
Held: A judge of the Crown Court is obliged under the section to make a mandatory order . .
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 . .
Lists of cited by and citing cases may be incomplete.

Health, Crime, Human Rights

Updated: 18 May 2022; Ref: scu.271102

McBride v United Kingdom: ECHR 2006

Citations:

(2006) 43 EHRR SE 102

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

Updated: 18 May 2022; Ref: scu.267536

Nilsen v HM Prison Full Sutton and Another: CA 17 Nov 2004

The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights.
Held: Section 47 of the Act speaks not only of regulation and management of prisons but control of prisoners, and one legitimate aspect of a sentence of imprisonment is that it renders subject to control the exercise of the prisoner’s freedom to express himself to those who are outside the prison. ‘We do not believe that any penal system could readily contemplate a regime in which a rapist or a murderer would be permitted to publish an article glorifying in the pleasure that his crime had caused him. English jurisprudence suggests that to restrict prisoners from publishing such matter is a legitimate exercise of the power conferred on the Secretary of State by the Prison Act. ‘

Judges:

Mr Justice Gage, Lord Justice Kennedy, Lord Phillips Master Of The Rolls

Citations:

[2004] EWCA Civ 1540, Times 23-Nov-2004, [2005] 1 WLR 1028

Links:

Bailii

Statutes:

European Convention on Human Rights, Prison Rules 1999

Jurisdiction:

England and Wales

Citing:

Cited – Raymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .
Cited – Regina v Secretary of State for Home Department ex parte Mellor CA 4-Apr-2001
A prisoner had no right to facilities to artificially inseminate his wife. In this case, he might not be released for several years, and there were no medical reasons advanced for finding exceptional reasons under the Department policy. Provided the . .
Cited – Bamber v United Kingdom ECHR 11-Sep-1997
The Commission declared inadmissible a complaint that Standing Order 5 G 2B infringed Article 10. The Order precluded prisoners from contacting the media by telephone except in exceptional circumstances. The Standing Order satisfied the requirement . .
Cited – Hirst v The United Kingdom (No. 2) ECHR 30-Mar-2004
(Commission) The prisoner alleged that the denial of his right to vote whilst in prison was disproportionate. He was serving a life sentence for manslaughter.
Held: The denial of a right to vote was in infringement of his rights and . .
Cited – Silver And Others v The United Kingdom ECHR 25-Mar-1983
There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were . .
Appeal from – Nilsen, Regina (on the Application of) v Governor of HMP Full Sutton and Another Admn 19-Dec-2003
The prisoner complained that having written an autobiography, the manuscript materials had been withheld, and that this interfered with his rights of freedom of expression.
Held: Such an action by the prison authorities was not incompatible . .

Cited by:

Appealed to – Nilsen, Regina (on the Application of) v Governor of HMP Full Sutton and Another Admn 19-Dec-2003
The prisoner complained that having written an autobiography, the manuscript materials had been withheld, and that this interfered with his rights of freedom of expression.
Held: Such an action by the prison authorities was not incompatible . .
Cited – O’Dowd (Boy George) v National Probation Service London Admn 23-Dec-2009
Refusal of curfew relaxation was reasonable
The claimant had been released from prison early on licence subject to conditions including a home detention curfew. He was offered a place on a TV programme, Celebrity Big Brother, which would require relaxation or alteration of his place of . .
Cited – O’Dowd (Boy George) v National Probation Service London Admn 23-Dec-2009
Refusal of curfew relaxation was reasonable
The claimant had been released from prison early on licence subject to conditions including a home detention curfew. He was offered a place on a TV programme, Celebrity Big Brother, which would require relaxation or alteration of his place of . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights, Media

Updated: 17 May 2022; Ref: scu.219479

Mersey Care NHS Trust v Ackroyd: QBD 7 Feb 2006

The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical records.
Held: The need for involvement by the third party in the source’s wrongdoing is a threshold requirement in an action for breach of confidence. In this case Mr Brady had withdrawn his objection to the disclosure. The information disclosed related not to medical information, but information about assaults on him by hospital staff. The court considered that there had been wrongdoing by the original discloser. He must be presumed to have known that the records disclosed were confidential, and that he had edited them before releasing them. It was not intimate or highly sensitive information. The source probably was a worker at the hospital, but it was not established that he was an employee, but he would still be under a duty of care to Ian Brady and to the hospital. The material was not disclosed for payment, and was probably welcome to the patient. As against the hospital, was the disclosure in the public interest? That defence was not established. Large numbers of people might have had accessto te information, and th enumber of leaks had diminisshed substantially. It was not established that the disclosure of the source was necessary for staff morale. The motive of the defendant was relevant, and came within fulfilling the roles described in Simms etc.
The court was unable to say that the hospital would have been able to take proceedings against the source, and could show no damage, but had established the threshhold condition that it was a victim. There was no financial motive. The court had to find the balance, and it could no longer be said that it was necessary to disclose the source, and an order for disclosure would not be proportionate.

Judges:

Tugendhat J

Citations:

[2006] EWHC 107 (QB), Times 09-Feb-2006

Links:

Bailii

Statutes:

Contempt of Court Act 1981 10, Human Rights Act 1998 2, European Convention on Human Rights 810

Jurisdiction:

England and Wales

Citing:

See Also – Ackroyd v Mersey Care NHS Trust CA 16-May-2003
The journalist was required to provide the source of his material. In an earlier hearing the newspaper had been ordered to disclose the name of its source, the journalist. The claimant obtained summary judgement, which the journalist now appealed. . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – 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 . .
Cited – Gaskin v The United Kingdom ECHR 7-Jul-1989
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him . .
Cited – X Ltd v Morgan-Grampian (Publishers) Ltd HL 1990
In a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court’s authority if the order should be affirmed on appeal, the court must have a . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – Gunn-Russo v Nugent Care Society and Secretary of State for Health Admn 20-Jul-2001
The applicant had been adopted as a child, and sought disclosure of the adoption records. The 1983 regulations gave a discretion to the Society, which had acted as adoption agency, to disclose information. The internal report to the society failed . .
Cited – Goodwin v The United Kingdom ECHR 27-Mar-1996
An order for a journalist to reveal his source was a breach of his right of free expression: ‘The court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to . .
Cited – Regina v Mid Glamorgan Family Health Services Authority, ex parte Martin CA 7-Sep-1994
A doctor may deny a patient access to his health records if it is in the patient’s best interests to do so. There is no common law right for a patient to see his own medical records, and the Act is not retrospective. . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Z v Finland ECHR 25-Feb-1997
A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Camelot Group Plc v Centaur Communications Plc QBD 15-Jul-1997
Human rights law is no aid in protecting a journalist against an order requiring the return of confidential documents, even though this might identify the source of leak. . .
Cited – Ackroyd v Mersey Care NHS Trust 18-Oct-2002
The medical records of a patient at the hospital had been provided by an employee to a journalist who then provided a story to the Mirror. An order had been made for the Mirror to disclose the source. An application was now made against the . .
Cited – X v Y 1987
Complaint was made that defendant newspapers were to publish confidential medical records of doctors suffering Aids. An injunction was sought to prevent use of records given to a journalist by a hospital employee. The records related to doctors in . .
Cited – W v Egdell CA 1990
The plaintiff was detained in a secure mental hospital, under a hospital order coupled with a restriction order, after pleading guilty to manslaughter on the grounds of diminished responsibility. The defendant, a consultant psychiatrist, was engaged . .
Cited – McCartan Turkington Breen (A Firm) v Times Newspapers Limited HL 2-Nov-2000
(Northern Ireland) The defendant reported a press conference at which the claims denying the criminal responsibility of an army private were made. The report was severely critical of the claimants, who then sued in defamation. The defendants claimed . .
Cited – Schering Chemicals Ltd v Falkman Ltd CA 1982
The Defendants’ professional skills were engaged to present the plaintiff company in a good light, and an injunction was granted to restrain them from doing the opposite. Sach LJ said: ‘even in the commercial field, ethics and good faith are not to . .
Cited – Lion Laboratories Ltd v Evans CA 1985
Lion Laboratories manufactured and marketed the Lion Intoximeter which was used by the police for measuring blood alcohol levels of motorists. Two ex-employees approached the Press with four documents taken from Lion. The documents indicated that . .
Cited – London Regional Transport, London Underground Limited v Mayor of London Transport for London CA 24-Aug-2001
The claimants sought an interlocutory injunction restraining the defendants from publishing a report in breach of a contractual duty of confidence. This was granted but then discharged on the defendant undertaking only to publish a redacted version. . .
Cited – London Regional Transport, London Underground Limited v Mayor of London Transport for London CA 24-Aug-2001
The claimants sought an interlocutory injunction restraining the defendants from publishing a report in breach of a contractual duty of confidence. This was granted but then discharged on the defendant undertaking only to publish a redacted version. . .
Cited – Saltman Engineering Co v Campbell Engineering Co Ltd CA 1948
The plaintiffs instructed the defendant to make tools for the manufacture of leather punches in accordance with drawings which the plaintiffs provided to the defendant for this purpose. The defendant used the drawings to make tools, and the tools to . .
Cited – Fressoz and Roire v France ECHR 21-Jan-1999
Le Canard Enchaine published the salary of M Calvet, the chairman of Peugeot, (which was publicly available information) and also, by way of confirmation, photographs of the relevant part of his tax assessment, which was confidential and could not . .

Cited by:

Appeal from – Mersey Care NHS Trust v Ackroyd CA 21-Feb-2007
The defendant journalist had published confidential material obtained from the claimant’s secure hospital at Ashworth. The hospital now appealed against the refusal of an order for him to to disclose his source.
Held: The appeal failed. Given . .
Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Updated: 17 May 2022; Ref: scu.238438

Regina v Secretary of State for the Home Department ex parte Simms; ex parte O’Brien; ex parte Main: CA 9 Dec 1997

The removal of a prisoner’s right to talk to the press is part of the process of imprisonment. Prisoners’ letters could be read to the extent necessary to prove that they contained legally privileged material. A prisoner has no right to an oral interview (as opposed to correspondence) with a journalist who was willing to investigate his case and, if appropriate, to take up his case through the media.
Judge LJ said: ‘the starting point is to assume that a civil right is preserved unless it has been expressly removed or its loss is an inevitable consequence of lawful detention in custody.’ and ‘If he is visiting as a professional journalist, or intending to use the material obtained at interview in a professional capacity, it is difficult to accept that the limitation on the entitlement of the journalist to publish the contents of his communications with the prisoner infringes the prisoner’s right of free expression, at any rate in any way which significantly increases the inevitable interference with that right which follows incarceration. As the prisoner’s ability to communicate with journalists both orally and in writing is preserved, what in reality is at stake is the relationship between the journalist and those responsible for the secure administration of the prison. The potential for increased problems with security and discipline, staff, other inmates, and after conviction, with victims or their families, all underline the need for control of such visits to be vested in and exercised by the governor. This is what the regulatory framework is intended to achieve and in the circumstances I have concluded that the restriction currently under consideration is not ultra vires.’
Kennedy LJ: ‘In my judgment a convicted prisoner has no right to communicate orally with the media through a journalist. The loss of that ‘right,’ if it can properly be so described, is part and parcel a sentence of imprisonment. . . . I would therefore reject the vires argument which found favour with the judge and allow the appeal. Insofar as Mr. Owen sought to contend that the requirement of a written undertaking was and is irrational, disproportionate or otherwise unjustifiable, I would reject that submission, . . .’

Judges:

Judge LJ, Kennedy LJ, Chadwick LJ

Citations:

Gazette 08-Jan-1998, Times 09-Dec-1997, [1999] QB 349

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Secretary of State for Home Department ex parte Ian Simms and Michael Alan Mark O’Brien QBD 19-Dec-1996
A full restriction on the use of material emanating from a prison visit was unlawful as an interference with the right of free speech of the prisoner: ‘The blanket prohibition on making use of material obtained in a visit is not, on the evidence . .

Cited by:

Appeal from – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 17 May 2022; Ref: scu.87908

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

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

Judges:

Simon Brown LJ and Curtis J

Citations:

Times 13-Jun-1995, Independent 08-Jun-1995

Statutes:

European Convention on Human Rights 8

Citing:

Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .

Cited by:

Appeal from – Regina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc CA 6-Nov-1995
A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more . .
Cited – Regina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
Cited – Regina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
Cited – Cumming and others v Chief Constable of Northumbria Police CA 17-Dec-2003
The six claimants sought damages for wrongful arrest and false imprisonment. Each had been arrested on an officer’s suspicion. They operated CCTV equipment, and it appeared that tapes showing the commission of an offence had been tampered with. Each . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Manelfi Admn 25-Oct-1996
The applicant sought judicial review of the defendant’s refusal to employ him to work at GCHQ, which had a policy not to employ anyone with non-British parents save exceptionally. The claimant said this was racially discriminatory.
Held: The . .
Cited – Rogers, Regina (on the Application of) v Swindon NHS Primary Care Trust CA 12-Apr-2006
The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
Held: The policy had not been settled upon lawfully and was to be set aside. On the one hand the PCT developed a policy . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Appeal from – Regina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Lists of cited by and citing cases may be incomplete.

Employment, Administrative, Human Rights, Discrimination, Armed Forces

Updated: 17 May 2022; Ref: scu.87365

Anscomb v Secretary of State for Environment Transport and the Regions: QBD 22 Feb 2001

The claimant sought to object to an inspector’s decision to allow erection of a telecommunications mast. The failure of the inspector to consider potential health risks was not open to criticism because the claimant’s papers had made no reference to such risks. A technical report which might have been considered had not been submitted, and the claimant’s objection on human rights grounds failed inter alia on the grounds that the decision had been issued before the Act came into effect.

Citations:

Gazette 22-Feb-2001

Statutes:

Human Rights Act 1998 6(1) 7(1)(b) 22(4), Town and Country Planning Act 1990 288

Planning, Human Rights

Updated: 17 May 2022; Ref: scu.77804

Konttinen v Finland: ECHR 3 Dec 1996

(Commission) The applicant was a civil servant and a Seventh-day Adventist. He was dismissed for his refusal to continue working after sunset on Fridays. His contract required him to work on Friday evenings after sunset.
Held: The claim was manifestly ill-founded. The applicant had a duty to accept certain obligations to the State employer, including ‘ . . ..the obligation to observe the rule governing his working hours. He was cautioned by his employer, not having relinquished his post after the irreconcilable conflict arose between his religious convictions and his working hours. In these particular circumstances the Commission finds that the applicant was not dismissed because of his religious convictions but for having refused to respect his working hours. This refusal, even if motivated by his religious convictions, cannot as such be considered protected by Article 9 para. 1. Nor has the applicant shown that he was pressured to change his religious views or prevented from manifesting his religion or belief.The Commission would add that, having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post. The Commission regards this as the ultimate guarantee of his right to freedom of religion. In sum there is no indication that the applicant’s dismissal interfered with the exercise of his rights under Article 9 para.1’

Citations:

249/49/94, (1996) 87-A DR 68

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Copsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – X, Regina (on the Application of) v Y School Admn 21-Feb-2007
The court was asked whether a school was entitled to refuse to allow a Muslim girl to wear the niqab full face veil at school. The reasons were ‘first educational factors resulting from a teacher being unable to see the face of the girl with a . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 17 May 2022; Ref: scu.229002

Albert And Le Compte v Belgium: ECHR 24 Oct 1983

ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings.

Citations:

7496/76, 7299/75

Statutes:

European Convention on Human Rights 6

Citing:

See Also – Le Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
Hudoc The Court was faced with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months: ‘Unlike certain other disciplinary sanctions that might have . .
See Also – Le Compte, Van Leuven And De Meyere v Belgium ECHR 18-Oct-1982
Even where ‘jurisdictional organs of professional associations’ are set up: ‘Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the . .
Cited – Albert And Le Compte v Belgium ECHR 10-Feb-1983
Hudoc Violation of Art. 6-1; Just satisfaction reserved . .

Cited by:

Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
See Also – Albert And Le Compte v Belgium (Article 50) ECHR 24-Oct-1983
The applicants were Belgian nationals and medical practitioners. Dr Le Compte was suspended from practising medicine for two years for an offence against professional discipline. He appealed to the Appeals Council, alleging violations of Article 6. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 17 May 2022; Ref: scu.227215

In re Sagger (Confiscation order: Delay): CA 24 Feb 2005

The defendant had been convicted of drug trafficking and made subject to a confiscation order. Several years later the Commissioners sought a further confiscation order. He appealed the order, saying that it had infringed his right of a fair trial within a reasonable time.
Held: Where the state reserved to itself a continuing right to make a confiscation order, the reasonable time requirement applied throughout that period. The statute made it clear that the fixing of an amount left open without limitation of time, the possibility of a reassessment of the amount payable. The statute itself required the court to satisfy itself that there had been no undue delay. The reasonable time rights were engaged. A section 16 certificate allowing the matters to be re-opened would be issued so that the court could look again at all issues including whether the reasonable time requirement had in fact been infringed by the delay.

Judges:

Mummery, Rix, Carnwath LJJ

Citations:

Times 14-Mar-2005

Jurisdiction:

England and Wales

Human Rights, Criminal Practice

Updated: 16 May 2022; Ref: scu.223985

J and others v Switzerland: ECHR 5 Apr 1995

Even relatively minor medical treatment, if compulsory, may engage article 8.

Citations:

22398/93

Statutes:

European Convention on Human Rights 8

Cited by:

Cited – B, Regina (on the Application of) v Ashworth Hospital Authority HL 17-Mar-2005
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 16 May 2022; Ref: scu.224204

L v United Kingdom: ECHR 5 Oct 2004

The claimant had suffered mental illness and threatened to hurt himself. He was taken into hospital as a voluntary patient, but in effect detained compulsorily. He lacked capacity to consent to medical treatment.
Held: The holding of a patient informally amounted to a detention, and that detention was unlawful. It made no difference whether the ward was or was not locked. He was under continuous supervision and control and could not leave. The absence of procedural safeguards to protect such patients amounted to an infringeent of his human right of liberty. There was a contrast between such patients held under common law rules, and those who had been detained under the 1983 Act.

Judges:

Pellonpaa P

Citations:

Times 19-Oct-2004, 45508/99, [2004] ECHR 471

Links:

Worldlii

Statutes:

European Convention on Human Rights 5.1, Mental Health Act 1983 131(1)

Jurisdiction:

Human Rights

Citing:

Cited – L v Bournewood Community and Mental Health NHS Trust Admn 9-Oct-1997
L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is . .
Cited – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
At Admn – L v Bournewood Community and Mental Health NHS Trust Admn 9-Oct-1997
L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is . .
At CA – Regina v Bournewood Community and Mental Health NHS Trust, Ex parte L CA 2-Dec-1997
The applicant was severely autistic, and unable to consent to medical treatment. He had been admitted voluntarly to a mental hospital and detained under common law powers. The Hospital trust appealed a finding that his detention had been unlawful. . .
At HL – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
Admissibility – HL v United Kingdom ECHR 10-Sep-2002
(Admissibility) Whether a detention amounts to a deprivation of liberty depends upon all the facts and circumstances of the particular case . .

Cited by:

Cited – Austin and Saxby v Commissioner of the Police for the Metropolis QBD 23-Mar-2005
Towards the end of a substantial May Day demonstration on the streets of London, police surrounded about 3,000 people in Oxford Circus and did not allow them to leave for seven hours. The claimant who was present, but not involved in any of the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 May 2022; Ref: scu.218827

Paskhalidis And Others v Greece 20416/92: ECHR 19 Mar 1997

ECHR Judgment (Merits and Just Satisfaction) – Case of Mr Karatzalidis struck out of the list; Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings.

Citations:

20416/92, [1997] ECHR 16

Links:

Worldlii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights

Updated: 16 May 2022; Ref: scu.211554

Salgueiro da Silva Mouta v Portugal: ECHR 1 Dec 1998

A homosexual claimed that an award of custody of his daughter to her mother was an unjustified interference with his right to respect for family life, and also with his right to respect for his private life since he was required in respect of his right of access to his daughter to conceal from her his homosexuality.
Held: (Commission) His claim was held admissible.

Citations:

33290/96

Jurisdiction:

Human Rights

Citing:

See also – Salgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .

Cited by:

See also – Salgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
Cited – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 May 2022; Ref: scu.215936

X v Belgium: ECHR 1961

The Commission considered claims by long standing residents of the Belgian Congo who suffered as a result of upheavals on independence. One claim was based upon exclusion, albeit of Belgian nationals, from participation in the elections held in Belgium (in particular in 1958). The balance related to actions in the Congo both before and after independence. The Commission described Article 63 (now 56) as a so-called ‘colonial’ clause, recognising that when the Convention was first brought into effect, some of the signatories had colonies, but that ‘in contemporary practice, [such clauses had] undergone a rapid and distinct change parallel with the change in the legal position of the territories concerned’. Thus Article 56 represents ‘an effort to facilitate, although without rendering it compulsory, the application of the more important international treaties to territories, the status of which is as varied as it is changeable but without assigning a final degree of importance to any one such status’.
Held: ‘Whereas the applicants point out, in the second place, that their own status as Belgian citizens was sufficient to make them eligible for protection under Articles 1 and 4 of the Convention; Whereas the Commission is however unable to accept this view; whereas, although under the said Articles, the Contracting States guarantee to every person coming under their jurisdiction, without distinction, the rights and freedoms defined in Section 1 of the Convention, nevertheless the said guarantee is valid only within the limits of time and space recognised by those States; whereas the specific object of Article 63 of the Convention and Article 4 of the Protocol was to lay down, for everyone, the territorial field of application of the two instruments but without conferring any special privileges on nationals of the Contracting States; whereas also such privileges, far from flowing from Article 14 of the Convention, would be directly contrary to its provisions’. However, the claim in relation to elections in Belgium was within the ambit of the Convention since it arose from matters affecting the applicants’ rights as Belgian nationals in Belgium. It was rejected for other reasons. This case does not in any way assist the claimants’ argument.

Citations:

(1961) 4 YB 260

Cited by:

Cited – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for the Foreign and Commonwealth Affairs CA 29-Apr-2004
The claimant sought damages for having had its licence to catch Patagonian toothfish off South Georgia revoked, saying that it had infringed its property rights under the Convention.
Held: Though the Convention rights had been extended to . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 May 2022; Ref: scu.197881

X Ltd and Y Ltd v United Kingdom: ECHR 1982

The Commission considered the common law offence of blasphemous libel as an offence defined under common law rather than statute law.
Held: ‘The Commission considers that the same principles also apply to the interpretation and application of the common law. Whilst this branch of the law presents certain particularities for the very reason that it is by definition law developed by the courts, it is nevertheless subject to the rule that the law making function of the courts must remain within reasonable limits. In particular in the area of the criminal law it is excluded, by virtue of Article 7(1) of the Convention, that any acts not previously punishable should be held by the courts to entail criminal liability, or that existing offences should be extended to cover facts which previously clearly did not constitute a criminal offence. This implies that constituent elements of an offence such as e.g. the particular form of culpability required for its completion may not be essentially changed, at least not to the detriment of the accused, by the case law of the courts. On the other hand it is not objectionable that the existing elements of the offence are clarified and adapted to new circumstances which can reasonably be brought under the original concept of the offence.’

Citations:

(1982) 28 DR 77

Cited by:

Cited – Goldstein, Rimmington v Regina CACD 28-Nov-2003
Two defendants appealed in respect of alleged offences under common law of causing a public nuisance. One had sent race hatred material, and the other bomb hoaxes, through the post. Both claimed that the offence was so ill defined as to be an . .
Cited – Regina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation

Updated: 16 May 2022; Ref: scu.188886

Davies v Health and Safety Executive: CA 18 Dec 2002

The defendant complained that section 40 imposed a burden of proof upon him which infringed the presumption of innocence and his right to a fair trial. The trial judge held that the burden imposed a legal burden rather than an evidential one.
Held: The Act could not be read down so as to impose only an evidential burden on the defendant. The court applied the three stage test from Kebilene, asking what the prosecution had first to prove to transfer the burden, then what are the characteristics of what the defendant had to prove, and what was the threat to society addressed by the transfer of the burden. Here, there was no threat of imprisonment, and enforcement would be impossible without such a transfer.

Judges:

Tuckey LJ, Douglas Brown, Gordon JJ

Citations:

Times 27-Dec-2002

Statutes:

Health and Safety at Work Act 1974 3(1) 33(1)(a) 40

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Lists of cited by and citing cases may be incomplete.

Health and Safety, Human Rights

Updated: 16 May 2022; Ref: scu.178604

Regina (Ullah) v Special Adjudicator: Admn 16 Jul 2002

The appellant challenged an order denying him asylum and for his return to Pakistan. He said that his return would infringe his human rights be exposing him to denial of his rights to freedom of thought and religious belief.
Held: The considerations under article 9 were the same as those already expounded by the court with regard to article 6 in this situation. There is a permitted derogation under both articles for considerations of immigration control. The most the court could do would be to consider whether there was be a flagrant interference with the right. That did not apply here.

Judges:

Mr Justice Harrison

Citations:

Times 05-Sep-2002

Statutes:

European Convention on Human Rights 9, Immigration and Asylum Act 1999 65

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 16 May 2022; Ref: scu.174788

Sommerfeld v Germany: ECHR 11 Oct 2001

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; Violation of Art. 14+8; Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings

Citations:

31871/96, (2001) 36 EHRR 565, [2002] 1 FLR 119

Jurisdiction:

Human Rights

Citing:

Grand Chamber – Sommerfeld v Germany ECHR 8-Jul-2003
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 8 ; Violation of Art. 14+8 with regard to right of access ; Violation of Art. 14+8 with regard to right of appeal ; Not necessary to examine Art. . .

Cited by:

Cited – In re T (a Child) (Contact: Alienation: Permission to Appeal) CA 24-Oct-2002
After a judgment the parties sought to appeal.
Held: The judge had failed to make a finding on a critical issue in the case, namely whether or not the mother of the child concerned had ‘even if prompted only at a subconscious level, . .
Cited – F v M FD 1-Apr-2004
The court considered the ‘ongoing debate’ about the court’s role in contact disputes. ‘this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact . .
Appeal from – Sommerfeld v Germany ECHR 8-Jul-2003
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 8 ; Violation of Art. 14+8 with regard to right of access ; Violation of Art. 14+8 with regard to right of appeal ; Not necessary to examine Art. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 16 May 2022; Ref: scu.166603

Regina v Secretary of State for Home Department ex parte Ian Simms and Michael Alan Mark O’Brien: QBD 19 Dec 1996

A full restriction on the use of material emanating from a prison visit was unlawful as an interference with the right of free speech of the prisoner: ‘The blanket prohibition on making use of material obtained in a visit is not, on the evidence before me, therefore justified as the minimum interference necessary with the right of free speech to meet the statutory objectives.’ However the court upheld the need to regulate access by professional journalists acting as such to prisons and prisoners: ‘There is no doubt that restrictions on visits are necessary for the proper regulation and management of prisons, and for the treatment, discipline and control of inmates. It seems to me to be entirely proper that the primary restriction should be that the only visitors should be family and friends. This accords with the general and beneficial policy to ensure that, so far as possible, an inmate retains his family and social connections. Beyond those categories there has to be some justification, it seems to me, for a visit, in order to ensure that access to inmates is not exploited for purposes which could be inimical to proper management of and discipline within prisons.’ and ‘I consider that a restriction preventing an inmate from communicating orally with the media in a visit unless the representative of the media gives an undertaking not to use the material obtained at that visit is a restriction on the right of free speech. . . . The test is whether or not the restriction is necessary in order to achieve the statutory objectives. In the present context, these objectives include the need to keep visits within sensible bounds for the ordinary management of the prison, and the discipline and control of inmates. This clearly entitles rules to be made which preclude access to the media, in any form, merely for the purposes of purveying general complaints, tittle tattle or other material which may be mischievous or offensive. In particular, as was recognised in Bamber, proper discipline and control includes consideration of the effect of inmates’ activities on others. I am therefore quite satisfied that Rule 33(1) is lawful in including ‘the interests of any persons’ as a material consideration when deciding what restrictions are appropriate on communications between inmates and others. It follows, in my view, that the prohibition on communicating with the media by letter save where the inmate is making serious representations about his or her conviction or sentence. or is otherwise part of a serious comment about crime, the processes of justice or the penal system, meets the Leech test of being the minimum interference necessary to achieve the statutory objectives.’

Judges:

Latham J

Citations:

Times 17-Jan-1997, [1996] EWHC Admin 388

Links:

Bailii

Statutes:

Prison Act 1952 47, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .

Cited by:

Appeal from – Regina v Secretary of State for the Home Department ex parte Simms; ex parte O’Brien; ex parte Main CA 9-Dec-1997
The removal of a prisoner’s right to talk to the press is part of the process of imprisonment. Prisoners’ letters could be read to the extent necessary to prove that they contained legally privileged material. A prisoner has no right to an oral . .
At first instance – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Prisons

Updated: 16 May 2022; Ref: scu.87906

Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department: SC 22 Feb 2017

Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the Secretary of State by the 1998 Act to act compatibly with the right to respect for family life guaranteed by article 8 of the ECHR. In each case, the Secretary of State concluded that the appellant did not qualify for leave to remain under the applicable provisions of Appendix FM to the Immigration Rules and that, applying the Immigration Directorate Instructions, ‘Family Members Under the Immigration Rules, Section FM 1.0, Partner and ECHR Article 8 Guidance’ there were no exceptional circumstances warranting the grant of leave to remain outside the Rules.
Held: The appeals failed. The Rules and Instructions applied in these cases were consistent with the proper application of article 8.
In the first case, there was no evidence placed before the respondent that there were exceptional circumstances. Ms Agyarko’s claim could not be regarded as very strong or compelling.
As to Ms Ikuga, part of the decision was incorrectly based. However, looking at the decision taken, the result would have been the same, and she not having put forward anything which might constitute ‘exceptional circumstances’ as defined in the Instructions, that is unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate.
The ground of challenge under Article 20 EU failed. If a situation were to arise in which the refusal of a third-country national’s application for leave to remain in the UK would force his or her British partner to leave the EU, in breach of article 20 TFEU, such a situation could be addressed under the Rules as one where there were ‘insurmountable obstacles’, or in any event under the Instructions as one where there were ‘exceptional circumstances’. Typically, however the British citizen would not be forced to leave the EU, any more than in the case of Dereci, and the third-country national would not, therefore, derive any rights from article 20 .

Judges:

Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Carnwath
Lord Hughes
Lord Hodge

Citations:

[2017] UKSC 11, [2017] WLR(D) 126, [2017] 3 CMLR 3, [2017] 1 WLR 823, [2017] Imm AR 764, [2017] INLR 548, UKSC 2015/0129

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Human Rights Act 1998, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Appeal from – Agyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
Cited – Ruiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .
Cited – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Cited – Jeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
Cited – Sen v The Netherlands ECHR 21-Dec-2001
. .
Cited – 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 – Tuquabo-Tekle and Others v The Netherlands ECHR 1-Dec-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection dismissed (estoppel); Violation of Art. 8; Pecuniary damage – claim dismissed; Non-pecuniary damage – financial award; Costs and expenses . .
Cited – Sezen v The Netherlands ECHR 31-Jan-2006
The case concerned ‘a functioning family unit where the parents and children are living together’. The court considered wehether a deportation would infringe the human rights of te applicant: ‘The Court has previously held that domestic measures . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – MF (Nigeria) v Secretary of State for The Home Department CA 8-Oct-2013
The court was asked: ‘How is the reference in rule 398 to ‘exceptional circumstances’ to be understood, compatibly with Convention rights?’
Held: The Court of Appeal accepted the submission made on behalf of the Secretary of State that the . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Cited – Secretary Of State For The Home Department v CS (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
The Court of Justice held: ‘that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom . .
Cited – Alokpa and Moudoulou v Ministre Du Travail, De L’Emploi Et De L’Immigration ECJ 10-Oct-2013
ECJ Citizenship of the Union – Articles 20 TFEU and 21 TFEU – Directive 2004/38/EC – Right of residence of a third-country national who is a direct relative in the ascending line of Union citizens who are minor . .
Cited – Iida v Stadt Ulm ECJ 8-Nov-2012
ECJ Articles 20 TFEU and 21 TFEU – Charter of Fundamental Rights of the European Union – Article 51 – Directive 2003/109/EC – Third-country nationals – Right of residence in a Member State – Directive 2004/38/EC . .

Cited by:

Cited – HC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
Cited – Rhuppiah v Secretary of State for The Home Department SC 14-Nov-2018
Ms R had overstayed, but resisted deportation claiming a long term relationship with a man for who she cared. Her leave was continued 11 times. A Seventh Day Adventist, the care she provided was as a friend. Indefinite leave to remain was refused . .
Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, European

Updated: 16 May 2022; Ref: scu.575309

X v United Kingdom: ECHR 3 Oct 1975

The applicant, a serving prisoner, complained that he had been excluded from voting in the referendum on the British membership of the EEC.
Held: Article 10 does not guarantee a right to vote as such.
Article 3 Protocol 1 : the obligations of the High Contracting Parties under this provision are limited to the field of elections concerning the choice of the legislature. British Referendum on EEC membership outisde the scope of this provision.

Citations:

7096/75

Statutes:

European Convention on Human Rights A3P1 810

Jurisdiction:

Human Rights

Cited by:

Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Elections, European

Updated: 15 May 2022; Ref: scu.541521

X v United Kingdom: ECHR 1979

(Commission) The claimant sought admission of her complaint that being employed by the European Commission and resident in Belgium she had lost her right to vote. She contrasted her position with that of members of the armed forces and members of diplomatic missions who retained their votes though overseas.
Held: The complaint was inadmissible. The comparators remained in the employment of the UK government and were sent overseas under compulsion. The discrimination was justified. They were resident-citizens, in contrast to the applicant who was living abroad voluntarily.

Citations:

(1979) 15 DR 137

Jurisdiction:

Human Rights

Cited by:

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

Human Rights, Elections

Updated: 15 May 2022; Ref: scu.420211

Prosecutor v Furundzija: ICT 10 Dec 1998

The status of the prohibition on State torture as a rule of jus cogens has the consequence that at the inter-State level, any legislative, administrative or judicial act authorising torture is illegitimate. Furthermore, the prohibition on State torture imposes obligations owed by States erga omnes, to all other States which have a corresponding right and interest in compliance.
(International Criminal Tribunal for the Former Yugoslavia The Hague) The jus cogens character of the prohibition on torture means that it enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules with the consequence that no derogation from the rule by States can be permitted, whether through international treaties or local or special customs or even general customary rules not endowed with the same normative force. The prohibition of torture is an absolute value from which nobody must deviate.
‘Furthermore, the prohibition of torture imposes upon states obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued.’

Citations:

Case No. IT – 95- 17/T 10, (1998) 38 ILM 317

Links:

ICT

Cited by:

Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
See Also – Prosecutor v Furundzija 1-Apr-1999
(International Criminal Tribunal for the Former Yugoslavia) The court described the main features of the law against torture: ‘There exists today universal revulsion against torture: as a USA Court put it in Filartiga v. Pena-Irala, ‘the torturer . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
Lists of cited by and citing cases may be incomplete.

International, Human Rights

Updated: 15 May 2022; Ref: scu.272824

Ringeisen v Austria: ECHR 22 Jun 1972

Hudoc Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award.

Citations:

2614/65, [1972] ECHR 2, [1972] ECHR 2

Links:

orldlii, Bailii

Statutes:

European Convention on Human Rights 86

Jurisdiction:

Human Rights

Citing:

See Also – Ringeisen v Austria ECHR 16-Jul-1971
The Austrian District and Regional Real Property Transactions Commission refused to approve the sale of a number of plots of land. The applicant challenged the refusal alleging bias and contending that his article 6 rights were violated for that . .

Cited by:

See Also – Ringeisen v Austria ECHR 23-Jun-1973
(Interpretation) . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 May 2022; Ref: scu.164866

Albert And Le Compte v Belgium (Article 50): ECHR 24 Oct 1983

The applicants were Belgian nationals and medical practitioners. Dr Le Compte was suspended from practising medicine for two years for an offence against professional discipline. He appealed to the Appeals Council, alleging violations of Article 6. In his absence the Appeals Council rejected his case and substituted for the two year suspension a direction to strike his name from the Ordre des Medecins. He lodged an objection which was dismissed, and thereafter appealed on a point of law to the Court of Cassation. That too was dismissed.
Held: Article 6 does apply to professional disciplinary proceedings: ‘What is required is that ‘either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1).’ The court observed that there are some cases which are not comprised within either civil or criminal categories and which thus fall outside the ambit of article 6.

Citations:

7299/75, 7496/76, [1983] 5 EHRR 533

Statutes:

European Convention on Human Rights 6

Citing:

See Also – Albert And Le Compte v Belgium ECHR 10-Feb-1983
Hudoc Violation of Art. 6-1; Just satisfaction reserved . .
See Also – Le Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
Hudoc The Court was faced with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months: ‘Unlike certain other disciplinary sanctions that might have . .
See Also – Le Compte, Van Leuven And De Meyere v Belgium ECHR 18-Oct-1982
Even where ‘jurisdictional organs of professional associations’ are set up: ‘Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the . .
See Also – Albert And Le Compte v Belgium ECHR 24-Oct-1983
ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings. . .

Cited by:

See also – Albert And Le Compte v Belgium ECHR 10-Feb-1983
Hudoc Violation of Art. 6-1; Just satisfaction reserved . .
Cited – Aaron v The Law Society (the Office of the Supervision of Solicitors) QBD 13-Oct-2003
The appellant challenged an order suspending him from practice as a solicitor for two years. He had previous findings of professional misconduct in failing to pay counsels’ fees. In the course of later disciplinary proceedings he was found to have . .
Cited – Whitmey, Regina (on the Application of) v the Commons Commissioners CA 21-Jul-2004
The applicant sought to leave to appeal against refusal of his challenge to the registration of land as a green.
Held: The 1965 Act did not limit the registration of greens to those which were registered by 3 January 1970. The Commons . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
Cited – G, Regina (on The Application of) v X School and Others CA 20-Jan-2010
The claimant was a teaching assistant. A complaint had been made that he had kissed a boy having work experience at the school, but it had been decided that no criminal prosecution would follow. He sought judicial review of the school’s decision to . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 May 2022; Ref: scu.164930

Sheffield and Horsham v The United Kingdom: ECHR 30 Jul 1998

It is within a nation’s margin of appreciation to refuse to re-register birth details of people who had undergone sex-changes. Similarly it was not a human rights infringement not to allow post operative trans-sexuals to marry. However the court was critical of the United Kingdom’s apparent failure to take any steps to keep this area of the law under review. There is, the court said, an increased social acceptance of trans-sexualism and an increased recognition of the problems which post-operative transsexual people encounter. The court reiterated that this area ‘needs to be kept under review by Contracting States’
Hudoc No violation of Art. 8; No violation of Art. 12; No violation of Art. 14+8; Not necessary to examine Art. 13

Citations:

Times 04-Sep-1998, 22985/93, 23390/94, (1998) 27 EHRR 163, [1998] ECHR 69

Links:

Worldlii

Statutes:

European Convention on Human Rights Art 8, 12

Jurisdiction:

Human Rights

Citing:

Cited – Cossey v The United Kingdom ECHR 27-Sep-1990
A male to female transsexual who had undergone full gender reassignment surgery wished to marry. The court held that despite the Resolution of the European Parliament on 12th September 1989 and Recommendation 1117 adopted by the Parliamentary . .
Cited – Rees v The United Kingdom ECHR 17-Oct-1986
The applicant had been born and registered as a female, but later came to receive treatment and to live as a male. He complained that the respondent had failed to amend his birth certificate.
Held: The court accepted that, by failing to confer . .
Cited – Corbett v Corbett (otherwise Ashley) FD 1-Feb-1970
There had been a purported marriage in 1963 between a man and a male to female trans-sexual.
Held: Because marriage is essentially a union between a man and a woman, the relationship depended on sex, and not on gender. The law should adopt the . .

Cited by:

Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Administrative

Updated: 15 May 2022; Ref: scu.165644

Smith v Secretary of State for Trade and Industry: EAT 15 Oct 1999

The claimant had been sole director of a company which went into liquidation. He sought a redundancy payment from the respondent under the 1996 Act. It was refused. The tribunal had applied Buchan. It had refused to hear an argument that the tribunal chairman was also employed by the respondent and could not therefore be independent.
Held: Although the Human Rights Act was not yet in force, when looking at a case which would be reheard after it has come into effect, it is right to allow for the Act. Article 6 of the Convention allows a fair trial, yet in this case, the bankrupt’s representative, and the tribunal hearing his case were both indirectly employees of the respondent. As a bankrupt, the claimant’s affairs were managed by the Official Reciver, again an employee of the respondent. The appellant should have been given chance to argue the point before the tribunal. In any event that fact that the claimant was a controlling shareholder did not of itself disqualify him from being an employee and entitled to a redindancy payment. His appeal was allowed.

Judges:

Morison J

Citations:

Times 15-Oct-1999, Gazette 10-Nov-1999

Statutes:

Human Rights Act 1998, European Convention on Human Rights and Fundamental Freedoms 6.1, Employment Rights Act 1996 166

Jurisdiction:

England and Wales

Citing:

Cited – Buchan and Ivey v Secretary of State for Employment EAT 20-Jun-1996
. .
See Also – Smith v Secretary of State for Trade and Industry EAT 13-Oct-1997
. .
Cited – Secretary of State for Trade and Industry v Bottrill CA 12-Feb-1999
There is no rule of law, to suggest that a sole director and owner of majority of shareholding, could not be an employee of that company, and be entitled to a redundancy payment on the liquidation of the company. ‘If the tribunal considers that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency, Employment

Updated: 15 May 2022; Ref: scu.89343

Skrine and Co (a Firm) and others v Euromoney Publications plc and others: QBD 10 Nov 2000

The court was asked to strike out parts of a defemation pleading alleging that (i) the Malaysian Prime Minister had acted in a manner intended and/or calculated to interfere with the independent judiciary; (ii) Malaysian judges applied the law of defamation to penalise dissent and stifle freedom of expression; and (iii) the claimants’ insurers only paid the original plaintiffs ‘exorbitant sums by way of ostensible damages and costs because they apprehended that the claimants would not have received a fair trial at the hands of Malaysia’s internationally discredited legal system.’
Held: An English court should not be asked to judge the propriety of the actions of the judiciary of a friendly foreign state. This would put such friendly relations at risk and an English judge could have no way of making such a judgment. It was not a breach of an applicant’s civil rights to enforce a properly made contribution order made there against a citizen here, since under the Act only an award which was just and equitable in all the circumstances could be made. The defence of fair comment could still be tried fairly.

Judges:

Morland J

Citations:

Times 10-Nov-2000, Gazette 23-Nov-2000, [2001] EMLR 16

Statutes:

Civil Liability (Contributions) Act 1978

Jurisdiction:

England and Wales

Citing:

Cited – Buttes Oil and Gas Co v Hammer (No 3) HL 1982
The House considered a dispute between two Us oil companies about the right to exploit an oil field in the Gulf. Each claimed to have a concession granted by the ruler of a Gulf state. Each state claimed that the oil field was within its territorial . .

Cited by:

Cited – Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
Cited – Korea National Insurance Company v Allianz Global Corporate and Specialty Ag ComC 18-Nov-2008
The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system . .
Lists of cited by and citing cases may be incomplete.

International, Human Rights, Defamation

Updated: 15 May 2022; Ref: scu.89300

R (Mrs) v Central Independent Television Plc: CA 17 Feb 1994

The court did not have power to stop a TV program identifying a ward of court, but which was not about the care of the ward. The first instance court had granted an injunction in relation to a television programme dealing with the arrest and the conviction of a paedophile who was the father of a five year old child. The mother had sought an injunction the terms of which were to ensure that the programme in no way identified the paedophile.
Held: The court allowed the television company’s appeal essentially on the ground that the programme did not so affect the care and upbringing of the child that it was appropriate to invoke the court’s jurisdiction. The court considered that there was no jurisdiction unless the programme could have had that effect. The court should eschew interference with the freedom of the press when exercising its wardship jurisdiction.
Waite LJ said: ‘These authorities establish, in my judgment, that anonymity or confidentiality for a child or its circumstances can only be enforced by injunction in cases where the publicity would, or might in the view of the court threaten the effective working of the court’s own jurisdiction, whether it be in deciding a question about the upbringing of the child, or in exercising, as in Re C [1990] Fam 39, a continuing supervisory role over a child whose future has already been determined. A mere desire to secure for a child the advantages of confidentiality cannot of itself supply such an issue. Confidentiality is an aid to administration of the jurisdiction, and not a right or status which the jurisdiction itself has any power to confer.’
Hoffmann LJ said: ‘In any area of human rights like freedom of speech, I respectfully doubt the wisdom of creating judge made exceptions, particularly when they require a judicial balancing of interests. The danger about such exceptions is that the judges are tempted to use them. The facts of the individual case often seem to demand exceptional treatment because the newspaper’s interest in publication seems trivial and the hurt likely to be inflicted very great. The interests of the individual litigant and the public interest in the freedom of the press are not easily commensurable. It is not surprising that in this case the misery of a five year old girl weighed more heavily with Kirkwood J than the television company’s freedom to publish material which would heighten the dramatic effect of the documentary. That is what one would expect of a sensitive and humane judge exercising the wardship jurisdiction. But no freedom is without cost and in my view the judiciary should not whittle away freedom of speech with ad hoc exceptions. The principle that the press is free from both government and judicial control is more important than the particular case.’
and ‘But this new jurisdiction is concerned only with the privacy of children and their upbringing. It does not extend to ‘injunctive protection of children from publicity which though inimicable to their welfare is not directed at them or those who care for them’ (M and N). It therefore cannot apply to publication of the fact that the child’s father has been convicted of a serious offence, however distressing it may be for the child to be identified as the daughter of such a man. If such a jurisdiction existed it could be exercised to restrain the identification of any convicted criminal who has young children. It may be that the decision in X County Councilcan be brought within Lord Donaldson of Lymington MR’s language because the child’s mother at whose past the intended publication was directed, was actually caring for the child at the time of the application. But the events in question had happened long before the child was born. The publication was not directly concerned with the child or its upbringing, and for my part I think that the judge, for wholly commendable reasons, was asserting a jurisdiction which did not exist.’

Judges:

Waite LJ, Hoffmann LJ

Citations:

Independent 17-Feb-1994, [1994] Fam 192, [1994] 2 FLR 151, [1994] 3 All ER 641

Jurisdiction:

England and Wales

Citing:

Cited – In re M and N (Minors) (Wardship: Publication of Information) CA 1990
The court considered whether to order that a child’s name be not published where the decision to publish would not affect the way in which the child is cared for, the child’s welfare is relevant but not paramount and must be balanced against freedom . .
Cited – X County Council v A and another 1984
The court made orders about the future of the child born to Mary Bell, who had been convicted at the age of 11 of the manslaughter of two little boys. He was asked to protect the new identities under which the child and her mother were living. . .

Cited by:

Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Cited – Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA 5-Jul-2004
The applicant sought an order that his application for a joint residence order should be held in public.
Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Livingstone v The Adjudication Panel for England Admn 19-Oct-2006
The claimant challenged a finding that as Mayor of London offensive remarks he had made to a journalist as he was pursued leaving a private party had brought his office into disrepute.
Held: The appeal succeeded. Though the remarks may have . .
Cited – X and Y v Persons Unknown QBD 8-Nov-2006
The claimants sought an injunction against unknown persons who were said to have divulged confidential matters to newspapers. The order had been served on newspapers who now complained that the order was too uncertain to allow them to know how to . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Cited – In Re G (Minors) (Celebrities: Publicity) CA 4-Nov-1998
Where extra publicity might attach to proceedings because of the celebrity of the parents, it was wrong to attach extra restrictions on reporting without proper cause. There remains a need to balance the need for the freedom of speech and the . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights, Media

Updated: 15 May 2022; Ref: scu.86320

Regina v Director of Serious Fraud Office, ex Parte Smith: HL 15 Jul 1992

The applicant having been cautioned for an offence under the Companies Act 1985, he objected to being required to answer questions put to him in connection with the matter by the Director of the Serious Fraud Office under the 1987 Act.
Held: The duty under the Act to answer SFO questions, continues even after the defendant is charged. The House identified six forms of immunity including: ‘a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies’ for which there were several motives.
Lord Mustill said: ‘That there is strong presumption against interpreting the statute as taking away the right of silence, at least in some of its forms, cannot in my view be doubted. Recently, Lord Griffiths (delivering the opinion in the Privy Council in Lam Chi-ming v The Queen [1991] 2 AC 212, 222) described the privilege against self-incrimination as ‘deep rooted in English law,’ and I would not wish to minimise its importance in any way. Nevertheless it is clear that statutory interference with the right is almost as old as the right itself. Since the 16th century legislation has established an inquisitorial form of investigation into the dealings and assets of bankrupts which is calculated to yield potentially incriminating material, and in more recent times there have been many other examples, in widely separated fields, which are probably more numerous than is generally appreciated.
These statutes differ widely as to their aims and methods. In the first place, the ways in which the overriding of the immunity is conveyed are not the same. Sometimes it is made explicit. More commonly, it is left to be inferred from general language which contains no qualification in favour of the immunity. Secondly, there are variations in the effect on the admissibility of information obtained as a result of the investigation. The statute occasionally provides in so many terms that the information may be used in evidence; sometimes that it may not be used for certain purposes, inferentially permitting its use for others; or it may be expressly prescribed that the evidence is not to be admitted; or again, the statute may be silent.’
and ‘The first is a simple reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business . . Secondly, there is a long history of reaction against abuses of judicial interrogation. . Next there is the instinct that it is contrary to fair play to put the accused in a position where he is exposed to punishment whatever he does. If he answers, he may condemn himself out of his own mouth; if he refuses he may be punished for his refusal. . Finally there is the desire to minimise the risk that an accused will be convicted on the strength of an untrue extra-judicial confession, to which the law gives effect by refusing to admit confessions in evidence except upon proof that they are ‘voluntary.”
and ‘Few would dispute that some curtailment of the liberty is indispensable to the stability of society; and indeed in the United Kingdom today our lives are permeated by enforceable duties to provide information on demand . .’

Judges:

Lord Mustill

Citations:

Gazette 15-Jul-1992, [1992] 3 All ER 456, [1992] 3 WLR 66, [1993] AC 1, [1992] BCLC 879

Statutes:

Criminal Justice Act 1987 2(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Director of the Serious Fraud Office Ex Parte Smith QBD 11-Mar-1992
The Serious Fraud Office may interview a defendant after he has been charged, but must give the caution and act accordingly and with caution. . .

Cited by:

Appealed to – Regina v Director of the Serious Fraud Office Ex Parte Smith QBD 11-Mar-1992
The Serious Fraud Office may interview a defendant after he has been charged, but must give the caution and act accordingly and with caution. . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – Regina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Cited – Regina v S and A CACD 9-Oct-2008
The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been . .
Cited – Phillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 15 May 2022; Ref: scu.86551

Emesa Sugar (Free Zone) Nv v Aruba Case C-17/98: ECJ 29 Feb 2000

It was not open to a party to a case before the European Court of Justice to seek opportunity to make written representations on opinions submitted to the Court by the Advocate General. Opinions of the Court of Human Rights that a party should have opportunity to see and comment upon all matters put before a tribunal were not applicable in this case. The role of the Advocates General was not to act in a partisan manner, and their views were given in a quasi-judicial capacity.

Citations:

Times 29-Feb-2000

Jurisdiction:

European

European, Administrative, Human Rights

Updated: 15 May 2022; Ref: scu.80310

A National Health Service Trust v D: FD 19 Jul 2000

A young child was very severely ill, and his life threatened from his illness. His doctors together considered that further treatment was not in his interests. They sought an order that in the event of future respiratory of cardiac failure, they should be free not to resuscitate him. His parents asserted that this infringed the child’s human rights.
Held: The UK law position is that the child’s interests are paramount. A death with dignity would not infringe his human rights. The question concerned steps being taken or not to prolong life, not to shorten it.

Citations:

Times 19-Jul-2000

Statutes:

European Convention on Human Rights

Health, Human Rights

Updated: 15 May 2022; Ref: scu.77581

NHS Property Services Ltd, Regina (on The Application of) v Surrey County Council and Another: Admn 13 Jul 2016

Judges:

Gilbart J

Citations:

[2016] EWHC 1715 (Admin), [2016] 4 WLR 130, [2016] WLR(D) 397, [2016] 4 WLR 128

Links:

Bailii, WLRD

Statutes:

Commons Act 2006, Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007

Jurisdiction:

England and Wales

Land, Human Rights

Updated: 15 May 2022; Ref: scu.567207

SC v United Kingdon: ECHR 2004

SC when aged 11 was charged with attempted robbery. He had previous convictions, and was committed to the crown court for trial. He applied to stay the proceedings as an abuse of process on account of limited intellectual capacity, and inability effectively to take part in a trial. It was not said that he was unfit to plead, but that a crown court trial would be a breach of his Article 6 Convention rights. He was tried and convicted; his appeal to the Court of Appeal (Criminal Division) failed.
Held: SC’s Article 6 rights had been breached if he had been unable effectively to participate in his trial. The Court described ‘effective participation’ in a trial: ‘However, ‘effective participation’ in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court. The defendant should be able to follow what is said by the prosecution witness and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence.’

Citations:

[2004] 40 EHRR 10

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Cited by:

Cited – Crown Prosecution Service v P; Director of Public Prosecutions v P Admn 27-Apr-2007
The prosecutor appealed a grant of a stay of a prosecution of the 13 year old defendant as an abuse of process. Reports had indicated that he was unfit to plead. The prosecution contended that, if the court thought P ought not to face trial by . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 14 May 2022; Ref: scu.251548

Shackell v United Kingdom: ECHR 27 Apr 2000

The court held inadmissible a claim by an unmarried woman to widow’s benefit. The parties having chosen not to marry, they could not complain of not having the legal benefits of a marriage. The promotion of marriage by way of limited benefits for surviving spouses could not be said to exceed the margin of appreciation afforded to the Government: ‘The court accepts that there may well not be an increased social acceptance of stable personal relationships outside the traditional notion of marriage. However, marriage remains an institution which is widely accepted as conferring a particular status on those who enter it.’

Citations:

45851/99

Jurisdiction:

Human Rights

Cited by:

Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Rodriguez v Minister of Housing of The Government and Another PC 14-Dec-2009
Gibraltar – The claimant challenged a public housing allocation policy which gave preference to married couples and parents of children, excluding same sex and infertile couples.
Held: The aim of discouraging homosexual relationships is . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Benefits

Updated: 14 May 2022; Ref: scu.244727

Regina (A) v Chief Constable of C: QBD 2001

The court considered the disclosure of unproved allegations as between police forces. Police authorities had disclosed information concerning the claimant to each other and in one case to a local authority. The information related to allegations of criminal conduct by the applicant towards children. These had been investigated but never prosecuted. The information was divulged to a prospective employer following the application by the claimant for a job as a primary school teacher.
Held: The court should consider whether a ‘pressing need’ could be shown.
There was no ‘decision’ such as to attract an obligation requiring to be judged according to the rules of procedural fairness (and therefore by implication no Article 6(1) claim): ‘What then of the position of the D constabulary when the information was passed by them to the local education authority? There cannot be the slightest doubt that the local education authority had a lawful interest and a ‘pressing’ need to receive the information which was in the possession of the county police since it was or could be important as affecting the decision which it was required to make. In one sense, the local education authority was the body best qualified to decide what, if anything, it would make of the information with which it was being provided. If it was uncertain about the strength of the complaints and needed to know more in order that it could make an informed decision, it was always at liberty to ask for assistance from the communicating police force for its opinion about that matter. It would thereafter be for it to decide whether, or to what extent, the non-conviction material should inform its decision. Before it did, it would, of course, have to provide the applicant with at least the gist of that information and offer him the opportunity to make representations about it.’

Judges:

Turner J

Citations:

[2001] 1 WLR 461

Jurisdiction:

England and Wales

Cited by:

Cited – Dr D, Regina (on the Application of) v Secretary of State for Health CA 19-Jul-2006
The doctor complained of the use of Alert letters where he was suspected of sexual abuse of patients, but the allegations were unsubstantiated. He complained particularly that he had been acquitted in a criminal court and then also by the . .
Lists of cited by and citing cases may be incomplete.

Police, Human Rights, Information

Updated: 14 May 2022; Ref: scu.244746

Logan v United Kingdom: ECHR 6 Sep 1996

The complaint was that the mandatory child support payments meant that the father could not visit his children as often as he was entitled under the court’s order to do. The complaint of a direct breach of article 8 failed because he could not show that the impact upon his family life was sufficiently grave, but in another case it might have been.

Citations:

24875/94

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Children

Updated: 14 May 2022; Ref: scu.239809