Tag: Human Rights

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 has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind’. This revulsion, as well as the importance States attach to the eradication of torture, has led to the cluster of treaty and customary rules on torture acquiring a particularly high status in the international normative system, a status similar to that of principles such as those prohibiting genocide, slavery, racial discrimination, aggression, the acquisition of territory by force and the forcible suppression of the right of peoples to self-determination. The prohibition against torture exhibits three important features, which are probably held in common with the other general principles protecting fundamental human rights.
The Prohibition Even Covers Potential Breaches.
Firstly, given the importance that the international community attaches to the protection of individuals from torture, the prohibition against torture is particularly stringent and sweeping. States are obliged not only to prohibit and punish torture, but also to forestall its occurrence: it is insufficient merely to intervene after the infliction of torture, when the physical or moral integrity of human beings has already been irremediably harmed. Consequently, States are bound to put in place all those measures that may pre-empt the perpetration of torture. As was authoritatively held by the European Court of Human Rights in Soering, international law intends to bar not only actual breaches but also potential breaches of the prohibition against torture (as well as any inhuman and degrading treatment). It follows that international rules prohibit not only torture but also (i) the failure to adopt the national measures necessary for implementing the prohibition and (ii) the maintenance in force or passage of laws which are contrary to the prohibition.
Let us consider these two aspects separately. Normally States, when they undertake international obligations through treaties or customary rules, adopt all the legislative and administrative measures necessary for implementing such obligations. However, subject to obvious exceptions, failure to pass the required implementing legislation has only a potential effect: the wrongful fact occurs only when administrative or judicial measures are taken which, being contrary to international rules due to the lack of implementing legislation, generate State responsibility. By contrast, in the case of torture, the requirement that States expeditiously institute national implementing measures is an integral part of the international obligation to prohibit this practice. Consequently, States must immediately set in motion all those procedures and measures that may make it possible, within their municipal legal system, to forestall any act of torture or expeditiously put an end to any torture that is occurring.

Another facet of the same legal effect must be emphasised. Normally, the maintenance or passage of national legislation inconsistent with international rules generates State responsibility and consequently gives rise to a corresponding claim for cessation and reparation (lato sensu) only when such legislation is concretely applied. By contrast, in the case of torture, the mere fact of keeping in force or passing legislation contrary to the international prohibition of torture generates international State responsibility. The value of freedom from torture is so great that it becomes imperative to preclude any national legislative act authorising or condoning torture or at any rate capable of bringing about this effect.
The Prohibition Imposes Obligations Erga Omnes.
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.
Where there exist international bodies charged with impartially monitoring compliance with treaty provisions on torture, these bodies enjoy priority over individual States in establishing whether a certain State has taken all the necessary measures to prevent and punish torture and, if they have not, in calling upon that State to fulfil its international obligations. The existence of such international mechanisms makes it possible for compliance with international law to be ensured in a neutral and impartial manner.
The Prohibition Has Acquired the Status of Jus Cogens.
While the erga omnes nature just mentioned appertains to the area of international enforcement (lato sensu), the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order. Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.

Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate.
The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act. What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: ‘individuals have international duties which transcend the national obligations of obedience imposed by the individual State’.

Furthermore, at the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. Indeed, it would be inconsistent on the one hand to prohibit torture to such an extent as to restrict the normally unfettered treaty-making power of sovereign States, and on the other hand bar States from prosecuting and punishing those torturers who have engaged in this odious practice abroad. This legal basis for States’ universal jurisdiction over torture bears out and strengthens the legal foundation for such jurisdiction found by other courts in the inherently universal character of the crime. It has been held that international crimes being universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes. As stated in general terms by the Supreme Court of Israel in Eichmann, and echoed by a USA court in Demjanjuk, ‘it is the universal character of the crimes in question ie. international crimes which vests in every State the authority to try and punish those who participated in their commission’.
It would seem that other consequences include the fact that torture may not be covered by a statute of limitations, and must not be excluded from extradition under any political offence exemption.’

Citations:

[1998] ICTY 3, (1998) 38 ILM 317

Citing:

Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
See Also – 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 . .

Cited by:

Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
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 . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 14 May 2022; Ref: scu.235915

X v United Kingdom: ECHR 15 Dec 1977

(Commission) The British court had ordered a Jordanian father to return his daughter to England. The English mother contacted the British consulate in Amman asking it to ‘obtain the custody of her daughter from the Jordanian Court’. The Consulate reported on the child’s well-being, and provided the mother with a list of lawyers practising in Jordan and registered her daughter in her passport, but with no result. She complained that the Consul had failed ‘to intervene in her domestic dispute and help reunite mother and child’, so allegedly violating articles 8 and/or 13, and that the Consul refused to ask its legal adviser to answer questions about Jordanian law in order to help her prepare her case for court in Jordan, so violating article 6.
Held: The complaint failed on the facts: ‘the consular authorities had done all that could be reasonably expected of them’.
The Commission stated as to jurisdiction:
‘authorized agents of a state, including diplomatic or consular agents bring other persons or property within the jurisdiction of that state to the extent that they exercise authority over such persons or property. Insofar as they affect such persons or property by their acts or omissions, the responsibility of the state is engaged . . Therefore, in the present case the Commission is satisfied that even though the alleged failure of the consular authorities to do all in their power to help the applicant occurred outside the territory of the United Kingdom, it was still ‘within the jurisdiction’, within the meaning of article 1 of the Convention.’
The applicant’s husband had removed her daughter to Jordan. The English Courts granted her custody and a committal order against the father requiring him to ensure that the daughter would be returned to the UK within three weeks. Her claim in Jordan was dismissed in absentia. When the father went back to Jordan, she sought assistance from the British Consulate in Amman to obtain the necessary local custody order. She complained at the lack of assistance.
Held: The claim was inadmissible. The consular office had taken what steps were reasonably open to them to assist. However ‘authorised agents of a state, including diplomatic or consular agents bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons of property. Insofar as they affect such persons or property by their acts or omissions, the responsibility of eth State is engaged.’

Citations:

(1977) 12 DR 73, 7547/76

Statutes:

European Convention on Human Rights 1

Jurisdiction:

Human Rights

Cited by:

Cited – Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 4-Feb-2013
The claimant was facing trial in Bali which would eventually lead to a sentence of death. She complained of inadequate legal assistance before and at the trial. She had been represented by a local lawyer, paid with funds (andpound;5,000) raised by . .
Cited – Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 22-May-2013
The appellant, a British national and European citizen was in prison in Bali convicted of a criminal charge for which she might face the death penalty. Having insufficient funds she sought legal assistance from the respondent for hr appeal, and now . .
Cited – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 13 May 2022; Ref: scu.231042

Osman Ozcelik And Others v Turkey: ECHR 20 Oct 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 10; Violation of Art. 6-1 (independent and impartial tribunal); No separate issue under Art. 6-1 (reasonable time); Non-pecuniary damage – financial award; Costs and expenses partial award – Convention and domestic proceedings.

Citations:

55391/00

Jurisdiction:

Human Rights

Human Rights

Updated: 13 May 2022; Ref: scu.231452

Scalera v Italy: ECHR 13 Nov 2003

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

Citations:

56924/00

Jurisdiction:

Human Rights

Human Rights

Updated: 13 May 2022; Ref: scu.190214

X v United Kingdom: ECHR 1978

(Commission) In the context of the second sentence of Article 2, ‘there is no positive obligation on the State in relation to the second sentence . . to subsidise any particular form of education in order to respect the religions and philosophical beliefs of parents. It is sufficient for the State, in order to comply with its obligations under Article 2, to evidence respect for the religions and philosophical beliefs of parents within the existing and developing system of education.’

Citations:

7782/77

Statutes:

European Convention on Human Rights 2

Jurisdiction:

Human Rights

Cited by:

Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Education

Updated: 12 May 2022; Ref: scu.187442

Regina (Wright) v Secretary of State for the Home Department: Admn 2001

A serving prisoner suffered a severe asthmatic attack in his cell and died. An inquest was held at which the family of the deceased were present, but unrepresented for want of legal aid. There was no inquiry into the quality of the medical treatment the deceased had received in prison, but the responsible medical officer had been suspended from duty and had previously been found guilty of serious professional misconduct. In an action against the Home Secretary liability was admitted, thus precluding forensic investigation of the case. The family sought judicial review on the grounds, among others, of a failure to protect the life of the deceased and a failure of the procedural obligation arising under article 2 of the Convention to investigate the circumstances of the death.
Held: An investigation, to satisfy article 2, must have certain features, being independent, effective, reasonably prompt, with sufficient public scrutiny, and the next of kin must be involved to an appropriate extent. ‘Where the victim has died and it is arguable that there has been a breach of article 2, the investigation should have the general features identified by the court in Jordan v United Kingdom at paras 106-109’. On the facts that there had been no effective official investigation into the death of the deceased and held that there should be an independent investigation, to be held in public, at which the family should be represented.

Judges:

Jackson J

Citations:

[2001] UKHRR 1399, [2001] EWHC Admin 520, [2001] LLR (Med) 478

Jurisdiction:

England and Wales

Citing:

Cited – Jordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .

Cited by:

Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department Admn 28-Apr-2005
D was undergoing trial for offences and was held in prison. He self-harmed repeatedly, and was recorded to require extra vigilance. He attempted to hang himself. Prison staff saved his life, but he was left paraplegic, and was then detained under . .
Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 12 May 2022; Ref: scu.186854

Pinder v United Kingdom: ECHR 1984

(Commission) ‘The Commission . . recalls that the concept of ‘civil rights’ is autonomous. Thus, irrespective of whether a right is in domestic law labelled ‘public’, ‘private’, ‘civil’ or something else, it is ultimately for the Convention organs to decide whether it is a ‘civil’ right within the meaning of article 6(1). However, in the Commission’s view, article 6(1) does not impose requirements in respect of the nature and scope of the relevant national law governing the ‘right’ in question. Nor does the Commission consider that it is, in principle, competent to determine or review the substantive content of the civil law which ought to obtain in the State Party any more than it could in respect of substantive criminal law. As it has stated in App No 7151/75: Sporrong and Lonnroth v Sweden, series B:
Whether a right is at all at issue in a particular case depends primarily on the legal system of the State concerned. It is true that the concept of a ‘right’ is itself autonomous to some degree. Thus it is not decisive for the purposes of article 6(1) that a given privilege or interest which exists in the domestic system is not classified or described as a ‘right’ by that system. However, it is clear that the Convention organs could not create by way of interpretation of article 6(1) a substantive right which has no legal basis whatsoever in the State concerned.’

Citations:

(1984) 7 EHRR 464, 10096/82

Cited by:

Cited – Matthews v Ministry of Defence CA 29-May-2002
The Ministry appealed against a finding that the Act, which deprived the right of a Crown employee to sue for personal injuries, was an infringement of his human rights.
Held: The restriction imposed by the section was not a procedural . .
Cited – Kehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 May 2022; Ref: scu.182984

Poku v United Kingdom: ECHR 1996

Citations:

[1996] 22 EHRR CD 94

Cited by:

Cited – Farrakhan, Regina (on the Application of) v Secretary of State for the Home Department CA 30-Apr-2002
The applicant sought admission to the UK. In the past he had made utterances which were capable of being racist. He claimed to have recanted, and had given undertakings as to his behaviour. At first instance it was held that the Home Secretary had . .
Cited – M v London Borough of Islington and Another CA 2-Apr-2004
The applicant asylum seeker had had her application refused, and was awaiting a removal order. She had a child and asked the authority to house her pending her removal.
Held: Provided she was not in breach of the removal order, the council had . .
Approved – Regina v Secretary of State for Home Department ex parte Mahmood CA 8-Dec-2000
A Pakistani citizen entered the UK illegally and claimed asylum. A week before his claim was refused and he was served with removal directions, he married a British citizen of Pakistani origin. Two children were later born.
Held: Only . .
Cited – M v London Borough of Islington and Another CA 2-Apr-2004
The applicant asylum seeker had had her application refused, and was awaiting a removal order. She had a child and asked the authority to house her pending her removal.
Held: Provided she was not in breach of the removal order, the council had . .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 May 2022; Ref: scu.182982

Kacaj v Secretary of State for the Home Department: Admn 2001

The relevant test of whether an order returning an asylum applicant to another country would infringe his human rights was whether there were substantial grounds for believing that the petitioner faced a real risk of relevant ill treatment if returned. There must be substantial grounds for believing that the claimant would face a real risk of the adverse effect which he or she claims to fear. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal: ‘although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.’

Judges:

Collins J, Mr C M G Ockelton and Mr J Freeman

Citations:

[2001] INLR 354, [2002] Imm AR 213

Jurisdiction:

England and Wales

Citing:

Appealed to – Kacaj v Secretary of State for the Home Department CA 14-Mar-2002
. .

Cited by:

Appeal from – Kacaj v Secretary of State for the Home Department CA 14-Mar-2002
. .
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 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 12 May 2022; Ref: scu.181861

Havard v United Kingdom: ECHR 1997

Citations:

38882/97

Jurisdiction:

Human Rights

Cited by:

Cited – Regina (Annette Carson) v Secretary of State for Work and Pensions Admn 22-May-2002
The claimant received a UK state pension. She lived in South Africa, and challenged the exclusion of foreign resident pensioners from the annual uprating of pension benefits. She asserted that the state pension, or its uprating, were pecuniary . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 May 2022; Ref: scu.180997

Corner v United Kingdom: ECHR 1984

The Commission considered a complaint as to the UK government’s failure to pay an uprated pension to an applicant who had emigrated to South Africa. The Commission rejected as manifestly ill-founded the applicant’s complaint that the failure to pay the uprate infringed Article 1P. It also held that there was no violation of Article 14 read with Article 1P, saying ‘The Commission recalls that it has previously held that, although Article 1 of Protocol No. 1 does not, as such, guarantee a right to a pension, the right to benefit from a Social Security system to which a person has contributed may, in some circumstances, be a property right protected by it . . However, the Commission has also held that Article 1 does not guarantee a right to a pension of a particular amount, but that the right safeguarded by Article 1 consists, at most, ‘in being entitled as a beneficiary of the social insurance scheme to any payments made by the fund’ . . in accordance with domestic legal requirements . . Further, the Commission has held that the ‘freezing’ of a pension at a particular level when a person leaves the United Kingdom does not amount to a deprivation of possessions infringing Article 1 of the Protocol…’

Citations:

11271/84

Cited by:

Cited – Regina (Annette Carson) v Secretary of State for Work and Pensions Admn 22-May-2002
The claimant received a UK state pension. She lived in South Africa, and challenged the exclusion of foreign resident pensioners from the annual uprating of pension benefits. She asserted that the state pension, or its uprating, were pecuniary . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 May 2022; Ref: scu.180998

Scurci Chimenti v Italy: ECHR 19 Dec 2002

Hudoc Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – financial award ; Non-pecuniary damage – financial award
The applicant had let her flat. Her action to recover possession through the courts had taken 10 years, largely because of the lack of police support in enforcing her lawful attempts to recover possession under court orders, and she complained that this infringed her Protocol 1 article 1 rights.
Held: The court in Saffi had stated its view of the law in this situation. The case was well founded, and the claimant was awarded damages and costs.

Citations:

33227/96

Statutes:

European Convention on Human Rights 1

Jurisdiction:

Human Rights

Citing:

Applied – Immobiliare Saffi v Italy ECHR 28-Jul-1999
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1; Violation of Art. 6-1; Pecuniary damage – financial award; Non-pecuniary damage – claim rejected; Costs and expenses partial award – Convention . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Housing

Updated: 12 May 2022; Ref: scu.178682

M C v Italy: ECHR 19 Dec 2002

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

Citations:

32391/96, [2002] ECHR 831

Links:

Worldlii

Jurisdiction:

Human Rights

Human Rights

Updated: 12 May 2022; Ref: scu.178678

McKenna and Others v British Aluminum Ltd: ChD 16 Jan 2002

Claimants began an action in nuisance and Rylands v Fletcher against the respondents. They sought to strike out the claim on the basis that some of the claimants did not have a sufficient interest in the land affected. The rule in Rylands v Fletcher was an extension of the law of nuisance.
Held: On an interlocutory basis it was probable that the law of nuisance did apply, requiring the claimant’s to have an interest in land, but in the light of the extension of Human Rights law to common law, the claim could not be described as having no prospect of success, and the strike out request failed.

Judges:

Mr Justice Neuberger

Citations:

Times 25-Apr-2002

Jurisdiction:

England and Wales

Citing:

Cited – British Celanese Ltd v A H Hunt (Capacitors) Ltd QBD 1969
Metal foil had been blown from the defendant’s factory premises on to an electricity sub-station, which in turn brought the plaintiff’s machines to a halt.
Held: The meaning Lawton J would give to the phrase ‘direct victim’ was a person whose . .
Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .
Cited – Cambridge Water Company v Eastern Counties Leather Plc HL 9-Dec-1993
The plaintiffs sought damages and an injunction after the defendant company allowed chlorinated chemicals into the plaintiff’s borehole which made unfit the water the plaintiff itself supplied.
Held: The appeal was allowed. Liability under . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Human Rights

Updated: 12 May 2022; Ref: scu.170174

Mansell v United Kingdom: ECHR 2003

The non-disclosure of material evidence in the trial proceedings was held to have been remedied by the Court of Appeal’s examination of the impact of the non-disclosure upon the safety of the conviction.

Citations:

(2003) 36 EHRR CD 221

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Cited by:

Cited – Macklin v Her Majesty’s Advocate (Scotland) SC 16-Dec-2015
Appeal against conviction (in 2003) after release of undisclosed material helpful to the defendant, including an eye witness decsription incompatible with the defendant.
Held: The court considered the developing issues as to compatibility . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 11 May 2022; Ref: scu.597512

Genovese v Malta: ECHR 11 Oct 2011

The applicant was illegitimate, born to a British mother and a Maltese father. Paternity had been established scientifically and in judicial proceedings. The father refused to recognise his son on the birth certificate, and the applicant’s mother brought proceedings which resulted in the birth certificate being amended to show paternity. The applicant then applied for Maltese citizenship, which was denied on the basis that the applicant was illegitimate.
Held: There had been a violation of article 14 in conjunction with article 8 regarding the difference in treatment based upon birth out of wedlock: ‘While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise of a violation of article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that article’. At paragraph 34 the Court noted that as Maltese legislation had granted the right to citizenship by descent and established a procedure to that end the State ‘must ensure that the right is secured without discrimination’. At paragraph 47 recorded that the submission on behalf of Malta was that a mother is always certain, a father is not. The Court noted that it ‘cannot accept this argument . . even in cases such as the present where the father was known . . even in cases such as the present where the father was known and registered on the birth certificate, the distinction arising from the provisions of the Citizenship Act persisted.’
It is not permissible to treat children born out of wedlock as having no link with their parents, and it is not permissible to rely on the submission that ‘while a mother is always certain, a father is not’.
‘While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that article.’ Malta was not obliged to recognise the right to citizenship by descent, but as it did so, it had to ensure that the right was secured without discrimination. The discrimination could not be justified by the argument that ‘motherhood is certain, whereas fatherhood is not’: Paternity in this case having been established scientifically and in legal proceedings.

Citations:

53124/09, [2011] ECHR 1590, [2012] 1 FLR 10, [2012] Fam Law 20, [2011] Eq LR 1282, (2014) 58 EHRR 25

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department Admn 17-Jul-2014
The court was asked whether the Claimant’s proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence, involves a violation of article 14 in conjunction with article 8 of the European Convention on . .
Cited – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department CA 26-Jan-2016
The appellant was Jamaican by birth, but had lived here with his British father since the age of four. Had his parents been married, he would have had British nationality. As he grew to an adult he was convicted on several serious matters. He now . .
Cited – Johnson, Regina (on The Application of) v Secretary of State for The Home Department SC 19-Oct-2016
The court was asked: ‘Is it compatible with the European Convention on Human Rights to deny British citizenship to the child of a British father and a non-British mother simply because they were not married to one another at the time of his birth or . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family

Updated: 11 May 2022; Ref: scu.445805

Pfeifer v Austria: ECHR 2009

Citations:

(2009) 48 EHRR 8

Jurisdiction:

Human Rights

Citing:

See Also – Pfeifer v Austria ECHR 15-Nov-2007
The right to protect one’s honour and reputation is to be treated as falling within the protection of Article 8: ‘a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity . .

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: 11 May 2022; Ref: scu.442516

IN THE MATTER OF APPLICATIONS Nos. IPT/01/62 and IPT/01/77: IPT 23 Jan 2003

Rule 9(6) was ultra vires section 69 of RIPA as being incompatible with article 6 of the Convention but that ‘in all other respects the Rules are valid and binding on the Tribunal and are compatible with articles 6, 8 and 10 of the Convention’.

Citations:

IPT/01/77, IPT/01/62

Links:

IPT

Statutes:

Investigatory Powers Tribunal Rules 2000 (SI 2000/2665)

Jurisdiction:

England and Wales

Cited by:

Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Lists of cited by and citing cases may be incomplete.

Information, Human Rights

Updated: 11 May 2022; Ref: scu.383933

Regina v Radak; Regina v Adjei; Regina v Butler-Rees; Regina v Meghjee: CACD 7 Oct 1998

The court has a discretion to refuse to accept written evidence from a witness abroad who had refused to come here for fear of reprisals, and particularly so where the prosecution had failed to take advantage of procedures which would have allowed the defence to cross examine the witness.

Citations:

Times 07-Oct-1998

Statutes:

European Convention on Human Rights Art 6(3)(d); Criminal Justice Act 1988 26

Jurisdiction:

England and Wales

Criminal Evidence, Human Rights

Updated: 11 May 2022; Ref: scu.87587

Regina v Secretary of State for the Home Department: CA 10 Nov 1999

Where a person had been lawfully arrested, but later ordered to be released, because his continued detention was in breach of the Convention on Human Rights he could properly be denied compensation for the prior detention by the Secretary of State. There was no fault or maladministration on the part of the Home Secretary. The complainant had properly been arrested as a threat to national security and with a view to deportation.

Citations:

Times 10-Nov-1999

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Administrative, Human Rights

Updated: 11 May 2022; Ref: scu.85509

Johnson v Valks: CA 23 Nov 1999

A person requiring leave to issue proceedings as a vexatious litigant, had also to obtain leave again before entering an appeal to the Court of Appeal. The entering of an appeal is either the institution of new proceedings, or an application requiring leave as an application in any civil proceedings instituted in any court.
Sir Richard Scott, Vice-Chancellor observed: ‘As a general principle, if a judge of the High Court, to whom application is made by a vexatious litigant for permission to institute proceedings, grants that permission, the leave that is granted franks the proceedings. Every judgment at first instance now requires permission to appeal for the case to be taken further. An application for that permission will receive the attention of either the first instance judge or, as it maybe, the Court of Appeal. A vexatious appeal will not be permitted. So once the High Court has given permission for proceedings to be instituted, a further application to the High Court for permission to institute an appeal is, as it seems to me, superfluous. As at present, however, there is no escape from the requirement that a further application for permission to appeal must be made to the High Court. I propose, the point having come to my attention via Mr Johnson’s proposed appeal, to raise the question with the Rules Committee and see whether we are able to amend the Rules so as to make it clear that no further application under s. 42 of the 1981 Act is needed once permission to institute proceedings has been granted.’

Judges:

Robert Walker LJ, Swinton Thomas LJ

Citations:

Times 23-Nov-1999, Gazette 01-Dec-1999, [2000] 1 WLR 1502, [2000] 1 All ER 450

Statutes:

Supreme Court Act 1981 42(1A)

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Common Professional Examination Board, Ex Parte Mealing-Mcclead CA 19-Apr-2000
A party was required to pay money into court before pursuing an appeal. She borrowed money for this purpose but on the express condition that it should be used for this purpose only and was not to become part of her general assets. The money was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Human Rights

Updated: 10 May 2022; Ref: scu.82564

Du Toit and Vos v Minister for Welfare and Population Development: 10 Sep 2002

(South African Constitutional Court) Prospective adoptive parents were a same-sex couple who challenged laws preventing them from adopting. The court said: ‘In their current form the impugned provisions exclude from their ambit potential joint adoptive parents who are unmarried, but who are partners in permanent same-sex life partnerships and who would otherwise meet the criteria set out in section 18 of the Child Care Act . . Their exclusion surely defeats the very essence and social purpose of adoption which is to provide the stability, commitment, affection and support important to a child’s development, which can be offered by suitably qualified persons . . Excluding partners in same sex life partnerships from adopting children jointly where they would otherwise be suitable to do so is in conflict with the principle [of the paramountcy of the interests of the child] . . It is clear from the evidence in this case that even though persons such as the applicants are suitable to adopt children jointly and provide them with family care, they cannot do so. The impugned provisions . . thus deprive children of the possibility of a loving and stable family life . . The provisions of the Child Care Act thus fail to accord paramountcy to the best interests of the children.’

Citations:

(2002) 13 BHRC 187, [2002] ZACC 20, CCT 40/01

Links:

Saflii

Jurisdiction:

England and Wales

Cited by:

Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Human Rights, Discrimination

Updated: 10 May 2022; Ref: scu.270010

Re B (Disclosure to Other Parties): 2001

Witnesses and others involved in children proceedings have article 8 rights.

Citations:

[2001] 2 FLR 1017

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Doorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
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 by:

Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 10 May 2022; Ref: scu.245943

Re M (Care: Challenging Decisions by Local Authority): FD 2001

Local authorities involved in care proceedings will infringe the rights of parents and other individual parties to them under both Article 6 and Article 8 of the Convention unless they conduct themselves with integrity, transparency and inclusiveness so as to satisfy the family’s rights, necessarily to be construed in a wide sense, to a fair hearing and to respect for their private and family life.
Held: The mother’s appeal against the care order was dismissed.

Judges:

Holman J

Citations:

[2001] 2 FLR 1300

Jurisdiction:

England and Wales

Cited by:

Cited – NJ v Essex County Council and Another; In re J (Care: Assessment: Fair Trial); Re J (a child) (care proceedings: fair trial) CA 11-May-2006
The family complained that the local authority had, in assessing the need for a care order, failed to follow the guideliens set down in In Re L, leading to an infringement of their human rights.
Held: Neither in the lower court nor here had . .
Cited – Cheshire County Council and others v DS (Father) and others CA 15-Mar-2007
The court granted an appeal in care proceedings, but examined the relationship between the court and local authorities. There had been a late change in the proposed care plan and an application by grandparents to be made party. Some in the . .
Lists of cited by and citing cases may be incomplete.

Children, Local Government, Human Rights

Updated: 10 May 2022; Ref: scu.242871

Kalegoropoulou v Greece and Germany: ECHR 12 Dec 2002

Greek nationals had sued the German government for damages for war crimes committed in 1944. Judgment was obtained, but the judgment could be enforced against German state property in Greece only with the consent of the Minister of Justice, which could not be obtained. Proceedings to enforce the judgment without consent on the ground that the claimants were being deprived of a remedy, contrary to article 6 of the Convention, were dismissed by the Greek Court of Cassation.
Held: The petition to the European Court of Human Rights was held, applying Al-Adsani, to be ‘manifestly ill-founded’.

Citations:

Unreported, 12 December 2002, 50021/00

Jurisdiction:

Human Rights

Cited by:

Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 10 May 2022; Ref: scu.242890

Madan v General Medical Council: Admn 2001

There had been an interim suspension by the Interim Orders Committee of the GMC. Counsel for the GMC conceded the application of Article 6.
Held: Newman J: ‘For myself, I regard it as highly likely that the interim suspension hearings engage Article 6. I regard the fact that it has not been argued fully as no impediment in the way in which we must proceed in this application and whilst I do not have any deep reservations as to the applicability of the Article I would have preferred full argument being to see the exact working out of the Strasbourg jurisprudence and to identify the precise point at which, and the precise reasons why, Article 6 is engaged.’

Judges:

Newman J, Brooke LJ

Citations:

[2001] Lloyds Med R 539

Statutes:

European Convention on Human Rights 6

Jurisdiction:

England and Wales

Cited by:

Cited – Malik, Regina (on the Application of) v Waltham Forest PCT and Secretary of State for Health Admn 17-Mar-2006
The doctor had been suspended on full pay whilst allegations against him were investigated. He claimed that the suspension infringed his human rights and that his licence to practice was a possession.
Held: At the disciplinary proceedings: . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights

Updated: 10 May 2022; Ref: scu.242444

Choudhary v General Medical Council: PC 2001

The Board heard an appeal against a final order of suspension for 12 months. It considered Madan’s case.
Held: The Board wished to reserve their opinion on the reasoning in the judgments that it was the application of Article 6 which required the IOC to weigh the doctor’s interests against the protection of the public. But this reservation related not to whether Article 6 applied, but to the importation of the need for proportionality.

Judges:

Lord Hutton

Citations:

Appeal No 78 of 2001

Statutes:

European Convention on Human Rights 86

Jurisdiction:

England and Wales

Cited by:

Cited – Malik, Regina (on the Application of) v Waltham Forest PCT and Secretary of State for Health Admn 17-Mar-2006
The doctor had been suspended on full pay whilst allegations against him were investigated. He claimed that the suspension infringed his human rights and that his licence to practice was a possession.
Held: At the disciplinary proceedings: . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Human Rights

Updated: 10 May 2022; Ref: scu.242445

Aldrian v Austria: ECHR 1990

(Admissibility) ‘The Commission recalls its constant case-law according to which proceedings concerning the execution of a sentence imposed by a competent court, including proceedings on the grant of conditional release, are not covered by Article 6 para 1 of the Convention. They concern neither the determination of ‘a criminal charge’ nor of ‘civil rights and obligations’ within the meaning of this provision.’

Citations:

(1990) 65 DR 337

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Cited by:

Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 09 May 2022; Ref: scu.222101

Hols v Netherlands: ECHR 19 Oct 1996

The court arranged a live link transmission where both counsel were in the room with the witness while the judge and accused remained in the courtroom.
Held: The application was declared inadmissible. The Convention does not guarantee the accused a right to be in the same room as the witness giving evidence. What matters is that the defence should have a proper opportunity to challenge and question the witnesses against the accused. These requirements can be satisfied even where, for good reason, the accused is not physically present at the questioning.

Citations:

Unreported, 19 October 1996, 25206/94

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – D (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 09 May 2022; Ref: scu.222105

Niholas v Secretary of State for Defence: ChD 1 Aug 2013

The claimant had been the wife of a military officer, and occupied a property licensed to him by the defendant. They divorced and he left, and she now resisted grant of possession to the defendant.
Held: The claimant failed. However, there was no disagreement between counsel that differential treatment as between Crown tenants and other tenants is capable of being discrimination on the ground of ‘other status’ within Article 14.

Judges:

Burton J

Citations:

[2013] EWHC 2945 (Ch)

Statutes:

European Convention on Human ights

Jurisdiction:

England and Wales

Cited by:

Appeal from – Nicholas v Secretary of State for Defence CA 4-Feb-2015
The claimant wife of a Squadron Leader occupied a military house with her husband under a licence from the defendant. When the marriage broke down, he defendant gave her notice to leave. She now complained that the arrangement was discriminatory and . .
See Also – Secretary of State for Defence v Nicholas ChD 24-Aug-2015
Application to set aside an order granting the Secretary of State for Defence, the claimants in these proceedings, permission to issue a written possession. . .
Cited – Watts v Stewart and Others CA 8-Dec-2016
The court considered the status of residents of almshouses, and in particular whether they were licensees or tenants with associated security.
Held: The occupier’s appeal failed: ‘We do not accept the proposition that, if and insofar as Mrs . .
Lists of cited by and citing cases may be incomplete.

Housing, Landlord and Tenant, Human Rights

Updated: 09 May 2022; Ref: scu.594558

Gahramanov v Azerbaijan: ECHR 15 Oct 2013

(Admissibility) The applicant was prevented for (on his own case) some four hours from leaving, after being stopped at an airport.
Held: The complaint was inadmissible on the ground that it had not been shown that he had been obliged to remain any longer than was necessary to ascertain his status.

Citations:

26291/06

Jurisdiction:

Human Rights

Cited by:

Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 09 May 2022; Ref: scu.590445

Regina v Simmons: 1988

(Supreme Court of Canada) A contraband search based on reasonable suspicion of the presence of smuggled material is an exception to the usual requirements for searches imposed by section 8 of the Charter of Fundamental Rights.
Dickson CJ said: ‘People do not expect to be able to cross international borders free from scrutiny . . Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process . . ‘

Judges:

Dickson CJ

Citations:

[1988] 2 RCS 495

Jurisdiction:

Canada

Cited by:

Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, Police, Human Rights

Updated: 09 May 2022; Ref: scu.590394

MA and Others, Regina (on The Application of) v The Secretary of State for Work and Pensions: SC 9 Nov 2016

The appellants claimed housing benefit. They appealed against rejection of their claims that the imposition of limits to the maximum sums payable, ‘the bedroom tax’, was unlawful on equality grounds. The claimants either had disabilities, or lived with dependent family with disabilities, or live in what are known as ‘sanctuary scheme’ homes (accommodation specially adapted to provide protection for women at severe risk of domestic violence). They were all tenants of registered social landlords and they all receive or received HB.
Held: The appeal of Carmichael the appeal succeeded, but the other benefits claimants failed. The standard test in cases involving questions of economic and social policy was whether the discrimination was ‘manifestly without reasonable foundation’. How to deal with the impact of Reg B13 on individuals with disabilities was just such a question of economic and social policy; the housing benefit cap scheme was integral to the structure of the welfare benefit scheme. The Court of Appeal was therefore correct to apply this test
Otherwise: Daly and Others, Regina (on the application of) (formerly known as MA and others) v Secretary of State for Work and Pension
Regina (Carmichael) v Secretary of State for Work and Pensions

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Sumption, Lord Carnwath, Lord Hughes, Lord Toulson

Citations:

[2016] UKSC 58, [2016] WLR(D) 582, UKSC 2014/0129, [2016] PTSR 1422, (2017) 20 CCL Rep 103, [2016] 1 WLR 4550, [2017] 1 All ER 869, [2016] HRLR 24
Summary

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summ Video, SC290216 am, SC290216 pm, SC010316 am, SC010316 pm, SC020316 am, SC020316 pm

Statutes:

Housing Benefit Regulations 2006, European Convention on Human Rights 8 14, Equality Act 2010 149

Jurisdiction:

England and Wales

Citing:

Appeal from – Rutherford and Others, Regina (on The Application of) v Secretary of State for Work and Pensions CA 27-Jan-2016
Challenge to lawfulness of regulations applying a discount to payments of housing benefits when there was deemed to be a spare bedroom.
Held: The appeal succeeded in part. . .
At first instance – MA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Others QBD 30-Jul-2013
Ten disabled claimants challenged the changes to the 2006 Regulations introduced by the 2012 Regulations. The changes restricted the ability to claim Housing Benefit for bedrooms deemed extra. The claimants said that in their different ways each had . .
Appeal from – MA and Others, Regina (on The Application of) v The Secretary of State for Work and Pensions CA 21-Feb-2014
The claimants were in recipet of housing benefit. They claimed that the new benefits cap (‘bedroom tax’) discriminated against them when additional space was need for the care of family members with disabilities . .
Cited – Burnip v Birmingham City Council and Another CA 15-May-2012
The court considered an allegation of discrimination in the application of housing benefit for a disabled person.
Held: The claimants had established a prima facie case of discrimination under Article 14 of the ECHR, and that the Secretary of . .
Cited – Bracking and Others v Secretary of State for Work and Pensions CA 6-Nov-2013
Application for permission to appeal against refusal of leave to bring judicial review of decision by the respondent to close the Independent Living Fund.
Held: McCombe LJ summarised the application of section 149 of the 2010 Act: ‘1 . . . .
Cited – JS and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Others QBD 5-Nov-2013
The claimants challenged the benefits cap introduced under the 2012 Act, saying that it was discriminatory, affecting more women than men. Mr Eadie QC submitted on behalf of the Secretary of State that, as ‘an international instrument with no . .

Cited by:

Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Cited – RR v Secretary of State for Work and Pensions SC 13-Nov-2019
Housing benefit regulations had been found unlawful and were amended. The Court now considered what payments should have been made before the amendments came into effect.
Held: The appeal was allowed, and RR’s housing benefit entitlement is to . .
Lists of cited by and citing cases may be incomplete.

Benefits, Discrimination, Human Rights

Updated: 09 May 2022; Ref: scu.570982

Francis v Secretary of State for Work and Pensions: CA 10 Nov 2005

The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or an adopter, and that she should be similarly entitled.
Held: The regulations were discriminatory, and a declaration was granted. ‘we are bound to apply the test suggested by the House of Lords and to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic. ‘ and ‘administrative convenience cannot in itself be a sufficient justification for discrimination without some other justification as to why those in an analogous or relevantly similar situation are being excluded.’ Where the Secretary of State relies on administrative convenience and ‘bright line’ rules he must still show some ‘serious adverse consequences’ to justify the discrimination.

Judges:

Auld LJ, Moore-Bick LJ, Sir Peter Gibson

Citations:

[2005] EWCA Civ 1303, Times 17-Nov-2005, [2006] 1 WLR 3202

Links:

Bailii

Statutes:

European Convention on Human Rights 14, Social Fund Maternity and Funeral Expenses (General) Regulations 1987 5

Jurisdiction:

England and Wales

Citing:

Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Cited – Kjeldsen, Busk, Madsen and Peddersen v Denmark ECHR 7-Dec-1976
The claimants challenged the provision of compulsory sex education in state primary schools.
Held: The parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their . .
Cited – The National and Provincial Building Society, The Leeds Permanent Building Society And The Yorkshire Building Society v The United Kingdom ECHR 23-Oct-1997
There was no breach of human rights by the retrospective removal of a right to reclaim overpaid tax. Such a decision was within the general power of a government to impose and collect tax. Not every difference in treatment will amount to a violation . .
Cited – Petrovic v Austria ECHR 27-Mar-1998
The applicant was refused a grant of parental leave allowance in 1989. At that time parental leave allowance was available only to mothers. The applicant complained that this violated article 14 taken together with article 8.
Held: The . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .

Cited by:

Cited – Stewart v Secretary of State for Work and Pensions CA 29-Jul-2011
The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained . .
Cited – RR v Secretary of State for Work and Pensions SC 13-Nov-2019
Housing benefit regulations had been found unlawful and were amended. The Court now considered what payments should have been made before the amendments came into effect.
Held: The appeal was allowed, and RR’s housing benefit entitlement is to . .
Lists of cited by and citing cases may be incomplete.

Benefits, European, Discrimination, Human Rights

Updated: 09 May 2022; Ref: scu.234694

Mansell v United Kingdom: ECHR 2 Jul 1997

The judge imposed a longer than commensurate sentence in an indecent assault case to protect the public. The applicant complained that he should have been entitled to a review of the lawfulness of his detention as he was in the same position as a discretionary life prisoner because his sentence contained a preventative part as well as a punitive part.
Held: the application was manifestly unfounded. The A5(4) supervision is normally incorporated in the decision where a sentence of imprisonment is pronounced after conviction by a competent court. There was no question of the sentence being imposed because of the presence of factors which ‘were susceptible to change with the passage of time, namely mental instability and dangerousness’. ‘Such an ‘increased’ sentence is, however, no more than the usual exercise by the sentencing court of its ordinary sentencing powers, even if the ‘increase’ has a statutory basis. In particular, nothing in the sentencing procedure indicates that the fixed term sentence of five years imprisonment was anything other than a sentence which was imposed as punishment for the offences committed.’

Citations:

Unreported, 2 July 1997, 32072/96

Jurisdiction:

Human Rights

Cited by:

Cited – Giles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
Cited – Black, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 08 May 2022; Ref: scu.185426

Tsirlis And Kouloumpas v Greece 19233/91: ECHR 29 May 1997

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1; Violation of Art. 5-5; No violation of Art. 3; Not necessary to examine Art. 9; Not necessary to examine Art. 14+9; Not necessary to examine Art. 6-1; Not necessary to examine Art. 13; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings

Citations:

19233/91, [1997] ECHR 29

Links:

Worldlii

Jurisdiction:

Human Rights

Human Rights

Updated: 08 May 2022; Ref: scu.165508

General Mediterranean Holdings SA v Patel and Another: QBD 19 Jul 1999

The new Civil Procedure Rules were ultra vires and invalid insofar as they purported to remove any right of a solicitor’s client to assert his right of confidence as against his solicitor. The solicitor was therefore unable in this case to defend himself against a wasted costs order, but the court could allow for the refusal of the client to waive his privilege.
Toulson J said: ‘Article 6 gives every person a right to a fair trial, but I do not accept that it follows as a general proposition that this gives a right to interfere with another person’s right to legal confidentiality. If that were generally so, the right to legal confidentiality recognised by the court would be useless, since its very purpose is to enable a person to communicate with his lawyer secure in the knowledge that such communications cannot be used without his consent to further another person’s cause. In the absence of a general right under Article 6 to make use of another person’s confidential communications with his lawyer, I do not see how solicitors have a particular right to do so under that Article for the purpose of defending a wasted costs application.’

Judges:

Toulson J

Citations:

Times 12-Aug-1999, Gazette 11-Aug-1999, [1999] EWHC 832 (Comm), [1999] Lloyds Rep PN 919, [1999] 2 Costs LR 10, [2000] 1 WLR 272, [1999] 3 All ER 673, [2000] UKHRR 273, [1999] PNLR 852, [2000] HRLR 54, [1999] CPLR 425

Links:

Bailii

Statutes:

Civil Procedure Act 1997, Civil Procedure Rules 1998 No 1312

Jurisdiction:

England and Wales

Cited by:

Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Professional Negligence, Human Rights

Updated: 07 May 2022; Ref: scu.80789

Regina (Nadarajah) v Secretary of State for the Home Department: Admn 2 Dec 2002

The Claimant was a Tamil from Sri Lanka claiming asylum. He was married in 1991; his wife was also Tamil. In 1995 his claim for asylum in Germany failed. What then happened was disputed. The Claimant said that he voluntarily returned to Sri Lanka, where he was imprisoned and tortured; that his wife procured his release, following which he fled to the UK. The Secretary of State believes that the Claimant never left Germany, but simply went to ground before illegally and clandestinely entering the UK in 1998. After his arrest as an illegal entrant he claimed asylum. At that time, his asylum claim in Germany was still subject to an appeal to the German courts. When he arrived in the UK, he concealed the fact that he had previously applied for asylum in Germany or anywhere else; that he had done so was discovered when fingerprints were taken. The Home Secretary sought to remove him to Germany as a safe third country. Judicial review proceedings were begun on his behalf, but were held in abeyance pending the appeals in Adan and Aitsegeur [2001] 2 AC 477 and Yogathas [2002] UKHL 41 [2002] 4 All ER 785.
In August 2001, the Claimant’s wife entered this country and claimed asylum. In November 2001, the Home Secretary certified the Claimant’s asylum claim under section 11 of the Immigration and Asylum Act 1999. In January 2002, the Claimant’s solicitors withdrew the first judicial review claim on account of judicial decisions on third country certification (in the case of Yogathas that of the Court of Appeal).’

Judges:

Stanley Burnton J

Citations:

[2002] EWHC 2595

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Thangarasa; Same Ex parte Yogathas HL 17-Oct-2002
The applicants were asylum seekers who had been ordered to be returned to Germany, the country to which they had first escaped, for their asylum claims to be dealt with. They objected, asserting that Germany would not deal with their applications in . .

Cited by:

Appeal from – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Appeal from – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .
See Also – Nadarajah and Amirhanathan v Secretary of State for the Home Department CA 8-Dec-2003
The Secretary of State’s published policy was that, if legal proceedings were initiated, removal would not be treated as imminent even if it otherwise was. The Secretary of State also had an unpublished policy, namely that information that . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 May 2022; Ref: scu.236523

Regina v Lewis: CACD 6 Apr 2005

The defendant had been convicted under the 1981 Act. The European Court of Human Rights had found that police officers had infringed his human rights by their entrapment of him into offering them counterfeit currency. He now appealed his conviction.
Held: The finding that his human rights had been infringed did not necessarily make his conviction unsafe. The defendant had pleaded guilty after receiving legal advice, and there was overwhelming evidence independent of that complained of that he had been content to supply counterfeit currency. The conviction was not unsafe.

Citations:

Times 19-May-2005, [2005] EWCA Crim 859

Statutes:

Forgery And Counterfeiting Act 1981 16(1)

Jurisdiction:

England and Wales

Citing:

Cited – Edwards and Lewis v United Kingdom ECHR 27-Oct-2004
E had been convicted of possession of heroin with intent to supply, and L of possession of counterfeit currency. In each case public interest certificates had been obtained to withold evidence from them. The judge had refused requests to exclude . .
Cited – Jasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .

Cited by:

Cited – Dowsett v Criminal Cases Review Commission Admn 8-Jun-2007
The claimant had been convicted in 1993 of involvement in a murder. He had complained that the police had failed to disclose material which would have been of assistance to him. He had requested the Commission to take examine and pursue his appeal. . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 06 May 2022; Ref: scu.225047

H A L v Finland: ECHR 27 Jan 2004

Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion of domestic remedies) ; Violation of Art. 6-1 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings

Citations:

38267/97

Jurisdiction:

Human Rights

Human Rights

Updated: 06 May 2022; Ref: scu.193574

Morscher v Austria: ECHR 5 Feb 2004

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

Citations:

54039/00

Jurisdiction:

Human Rights

Human Rights

Updated: 06 May 2022; Ref: scu.193566

Hogben v United Kingdom: ECHR 3 Mar 1986

Citations:

11653/85

Jurisdiction:

Human Rights

Cited by:

Cited – Regina v R (Sentencing: Extended licences) CACD 25-Jul-2003
The imposition of an extended period of licence in respect of offences committed before 1992 did not infringe the defendant’s human rights. The defendant had been convicted of offences from 1976 and 1982. The commencement date for the 1991 Act was 1 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 06 May 2022; Ref: scu.185763

Regina v JT: CACD 2003

The provisions of section 68 were punitive, and therefore could not be read to have retrospective effect.

Citations:

[2003] EWCA Crim 1011

Statutes:

Powers of Criminal Courts (Sentencing) Act 2000 68, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Ibbotson v United Kingdom ECHR 1998
While the applicant was serving a sentence for possession of obscene material, the 1997 Act came into force, requiring him to register with the police. It was argued that the passing of the Act and its impact on the offender involved a ‘penalty’ . .

Cited by:

per incuriam – Regina v R (Sentencing: Extended licences) CACD 25-Jul-2003
The imposition of an extended period of licence in respect of offences committed before 1992 did not infringe the defendant’s human rights. The defendant had been convicted of offences from 1976 and 1982. The commencement date for the 1991 Act was 1 . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 06 May 2022; Ref: scu.185762

In re a local authority (Inquiry: restraint on publication); A Local Authority v A Health Authority and A: FD 27 Nov 2003

The authority had carried out an inquiry into its handling of an application for a care order. It sought to restrain republication of the report.
Held: There were competing requirements under the Convention. Any jurisdiction to restrain publication must be exercised in such circumstances only to protect the children involved. The scope to act for adults under a disability by letters patent or parens patriae had lapsed, but an inherent jurisdiction remained. Pending any statutory creation, the court would act through the common law doctrine of necessity. Here the action was required for protective rather than a custodial jurisdiction, and again the competing interests under the Convention had to be weighed. In both cases the requirements were met. For the children, and injunction was continued, and for the adults one was made. The balance came down in favour of protecting vulnerable adults by preventing publication of a local authority report: ‘They have had considerable and distressing disruption of their lives and are, as set out in the report, vulnerable. A period of peace, stability and a chance to settle down again after the very real upset of their lives is threatened by the likely intense media cover if this report is published. They are all under some disability but not such, as far as I know, as to prevent possibly all of them, but certainly at least 4 of them, from understanding the impact of press and other media intrusion. That intrusion would affect their daily lives and would be very likely to be disruptive, distressing and contrary to the need for them to settle back in the home. They clearly have rights under article 8 which are engaged and would be breached if the report is published. I am satisfied that publication of the report would be deeply damaging and detrimental to their welfare.
The factors supporting the rights of the vulnerable adults under article 8 have to be balanced against the right of the local authority to publish under article 10. I have found that it would be lawful on their behalf to interfere with the article 10 right of freedom of expression. I have considered very carefully whether to exercise the court’s discretion in favour of the vulnerable adults would be a disproportionate response to the contents of the report, having regard to the importance attached to article 10 by section 12 of the Human Rights Act 1998. I am also fully aware of the factors in favour of not restraining publication of volume 1. I am satisfied, however, that the balancing exercise comes down in favour of recognising the importance of the protection of the vulnerable adults by the granting of a declaration to that effect.’

Judges:

Dame Elizabeth Butler-Sloss P

Citations:

[2003] EWHC Fam 2746, Times 05-Dec-2003, Gazette 22-Jan-2004, [2004] EWHC 2746 (Fam), [2004] Fam 96, [2004] Fam Law 179, [2004] 1 FCR 113, [2004] 1 All ER 480, [2004] 2 WLR 926, (2004) 7 CCL Rep 426, (2004) 76 BMLR 210, [2004] BLGR 117, [2004] 1 FLR 541

Links:

Bailii

Statutes:

European Convention on Human Rights 8 10

Jurisdiction:

England and Wales

Citing:

Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .

Cited by:

Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Lists of cited by and citing cases may be incomplete.

Children, Administrative, Media, Local Government, Human Rights, Information

Updated: 05 May 2022; Ref: scu.188626

JW and EW v United Kingdom: ECHR 1982

The Commission considered a complaint that the UK government’s failure to pay an uprated pension infringed the pensioner’s Convention rights. The applicants were emigrating to Australia. The Commission rejected the complaint as inadmissible, saying ‘The Commission has considered the applicants’ complaint under Article 1 of the Protocol. It first recalls that it has previously held that although this provision does not as such guarantee a right to a pension, the right to benefit from a social security system to which a person has contributed may in some circumstances be a property right protected by it. However the Commission also held that Article 1 does not guarantee a right to a pension of any particular amount, but that the right safeguarded by Article 1 consists, at most, ‘in being entitled as a beneficiary of the social insurance scheme to any payments made by the fund’ (App. No. 5849/72, Muller v. Austria, D.R 3, p.25 at p. 31). It has further held that before the right to benefit protected by Article 1 can be established, it is necessary that the interested party should have satisfied domestic legal requirements governing the right (App. No. 7459/76, X. v. Italy, D.R. 11, p. 114). In the present case when the applicants emigrate to Australia their entitlement to benefit from the United Kingdom pension scheme will come to be regulated by different rules of domestic law, under which they will cease to qualify for payment of future pension increases contemplated by the relevant legislation. To that extent they will not satisfy domestic legal requirements to benefit from the United Kingdom pension scheme. Even if the right to benefit from a scheme will normally also apply to the regular increases this is not necessarily the case where a person leaves the country where the specific scheme operates. The Commission notes that in many countries specific restrictions as to the payment of social security benefits to foreign countries exist or have existed . . In the Commission’s view such operation of domestic law does not amount to a deprivation of possessions infringing Article 1 of the Protocol and there is thus no appearance of any breach of this provision.’

Citations:

9776/82

Jurisdiction:

Human Rights

Cited by:

Cited – Regina (Annette Carson) v Secretary of State for Work and Pensions Admn 22-May-2002
The claimant received a UK state pension. She lived in South Africa, and challenged the exclusion of foreign resident pensioners from the annual uprating of pension benefits. She asserted that the state pension, or its uprating, were pecuniary . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Benefits

Updated: 05 May 2022; Ref: scu.180999

Regina (Marais) v Governor of Brixton Prison and Another: QBD 30 Nov 2001

The process of extradition is not one itself involving the imposition of a criminal penalty, and therefore such proceedings were outside the ambit of the convention. The prisoner sought to challenge an extradition requested from South Africa, claiming an element of retrospectivity. The fact that at the time the offence was committed there was no extradition treaty wih South Africa did not create the situation where a heavier penalty was sought to be imposed than the penalty applicable at the time the criminal offence was committed.

Judges:

Lord Justice Kennedy and Mr Justice Pitchford

Citations:

Times 18-Dec-2001, Gazette 06-Feb-2002

Statutes:

European Convention on Human Rights art 5.1, Extradition Act 1989 9

Jurisdiction:

England and Wales

Extradition, Human Rights

Updated: 05 May 2022; Ref: scu.167110

M, Petitioner: OHCS 11 Jul 2002

The petitioner challenged his detention and treatment as a mental patient under the 1984 Act, claiming that his human rights to a fair trial had been infringed. It was argued that since the Act automatically dispensed with his common law right to refuse treatment, he had had denied to him the chance to have this issue determined by a court.
Held: The Act created a class of people, membership of which gave certain rights and took others away. He had rights to challenge his membership of that class, but he now sought to challenge the consequences of that membership. The attempt was misplaced under article 6. Under article 8, he questioned whether the interference in his rights was necessary. Given the acceptance that some limitation was permissible, it was a question of degree. It was not shown that the provisions were so far out of line with other states as to justify affirmation that the legislation was disproportionate.

Judges:

Lord Eassie

Citations:

Times 26-Aug-2002

Statutes:

Mental Health (Scotland) Act 1984, European Convention on Human Rights 1 6 8

Jurisdiction:

Scotland

Citing:

Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 05 May 2022; Ref: scu.174738

Regina v Governor of Brixton Prison and Others: QBD 12 Jul 2001

The applicant sought a writ of habeas corpus. He had been committed to prison pending extradition for murder to the USA. He argued that he should not be extradited because he would face a possible death penalty. The court refused the writ. The issue was not one to be faced at committal, but properly one to be addressed to the Secretary of State when the warrant was requested.

Judges:

Brooke LJ, Harrison J

Citations:

Gazette 13-Sep-2001

Jurisdiction:

England and Wales

Extradition, Human Rights

Updated: 05 May 2022; Ref: scu.163313

I J L, G M R, and A K P v United Kingdom (Application Nos 29522/95, 30056/96, and 30574/96): ECFI 13 Oct 2000

The obtaining by compulsion of statements in Companies investigations which were later used in evidence in criminal trials was a breach of the defendant’s human right to a fair trial by enforced self-incrimination. However there was no evidence in this case that there had been any collusion to seek to take advantage of the procedure in planning the timing of the criminal proceedings, and given the complex nature of the matters in issue, the delay was not so unreasonable as to amount to an infringement.

Citations:

Times 13-Oct-2000

Jurisdiction:

European

Criminal Evidence, Company, Human Rights

Updated: 04 May 2022; Ref: scu.81586

Valente v The Queen: 19 Dec 1985

Canlii Supreme Court of Canada – Courts — Charter of Rights — Independent tribunal — Provincial Court judge declined jurisdiction on ground Provincial Court (Criminal Division) not an independent tribunal — Whether or not judge of Provincial Court (Criminal Division) an independent tribunal.
Constitutional law — Charter of Rights — Courts — Independent tribunal — Jurisdiction declined on ground Provincial Court (Criminal Division) not an independent tribunal — Whether or not judge of Provincial Court (Criminal Division) an independent tribunal — Canadian Charter of Rights and Freedoms, s. 11(d) — Constitution Act, 1982, s. 52(1) — Provincial Courts Act, R.S.O. 1980, c. 398 — Public Service Act, R.S.O. 1980, c. 418 — Public Service Superannuation Act, R.S.O. 1980, c. 419 — Provincial Courts Amendment Act, 1983, 1983 (Ont.), c. 18, s. 1 — Provincial Judges and Masters Statute Law Amendment Act, 1983, 1983 (Ont.), c. 78, s. 2(2) — Courts of Justice Act, 1984, 1984 (Ont.), c. 11.

Judges:

Dickson CJ and Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ

Citations:

[1985] 2 SCR 673, 52 OR (2d) 779, 1985 CanLII 25 (SCC), 24 DLR (4th) 161, 23 CCC (3d) 193, 49 CR (3d) 97, 64 NR 1, [1985] CarswellOnt 129, [1985] SCJ No 77 (QL), 14 OAC 79, 15 WCB 326, 19 CRR 354, 37 MVR 9

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Misick and Others v The Queen PC 25-Jun-2015
Turks and Caicos – The appellants, a former Chief Minister and others, faced a trial on charges of corruption. They objected that the Justice set to hear the case had insufficient security of tenure to guarantee independence, and that the same judge . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Natural Justice, Legal Professions

Updated: 04 May 2022; Ref: scu.573790

X v Netherlands: ECHR 1967

The applicant, a specialist worker in the building industry, claimed unemployment benefit and was required as a condition of payment to accept work which he considered to be unsuitable for a person with his qualifications and socially demeaning. He refused the offer and brought a complaint of a violation of article 4. The Commission declared the complaint inadmissible, observing that it was open to the claimant to refuse the work and that its acceptance was only a condition for the grant of unemployment benefit. There could therefore be no question of forced or compulsory labour within the meaning of article 4.

Citations:

(1976) 7 DR 161

Statutes:

European Convention on Human Rights 4

Jurisdiction:

Human Rights

Cited by:

Cited – Reilly and Another, Regina (on The Application of) v Secretary of State for Work and Pensions SC 30-Oct-2013
The Secretary of State appealed against the decision in favour of Ms Reilly and Mr Wilson, that the 2011 Regulations, made under section 17A of the 1995 Act, did not comply with the requirements of that section, and (ii) a cross-appeal brought by . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Employment

Updated: 04 May 2022; Ref: scu.540480

Sessa v Italy: ECHR 3 Apr 2012

A Jewish lawyer complained that the refusal to adjourn his case to a date which did not coincide with the Jewish holidays of Yom Kippur and Sukkot was an interference with his right to manifest his religion. His complaint was dismissed by a majority of 4 to 3. A powerful minority pointed out that, for a measure to be proportionate, the authority must choose the means which is least restrictive of rights and freedoms. Thus, seeking a reasonable accommodation may, in some circumstances, constitute a less restrictive means of achieving the aim pursued. Mr Sessa had given the Italian court ample notice of the problem and reorganising the lists to accommodate him would cause minimal disruption to the administration of justice – ‘a small price to be paid in order to ensure respect for freedom of religion in a multi-cultural society’

Citations:

28790/08

Links:

HUDOC

Jurisdiction:

Human Rights

Human Rights, Discrimination

Updated: 04 May 2022; Ref: scu.540516

Nordstrom-Janzon v The Netherlands: ECHR 1996

The parties had settled an earlier dispute under a joint venture agreement on terms which included a provision that disputes between them should not be settled by the ordinary courts but by a special arbitration procedure. The arbitrators rejected all the claims advanced by the applicants. The applicants challenged the award in the Dutch courts on the ground that one of the arbitrators was not independent and impartial. The challenge failed in all the Dutch courts, including the Supreme Court (the Hoge Raad). They argued that the award should be quashed as being contrary to public order interests.
Held: Referring to Deweer, constraint was not alleged. Account must be taken, not only of the nature of the arbitration agreement and of the private arbitration proceedings, but also of the legislative framework providing for such proceedings, in order to determine whether the national courts retained a measure of control and whether that control was exercised on the facts: ‘The Commission observes that the grounds on which arbitral awards may be challenged before national courts differs among the Contracting States and considers that it cannot be required under the Convention that national courts must ensure that arbitral proceedings have been in conformity with Article 6 of the Convention. In some respects – in particular as regards publicity – it is clear that arbitral proceedings are often not even intended to be in conformity with Article 6, and the arbitration agreement entails a renunciation of the full application of that Article. The Commission therefore considers that that an arbitral award does not necessarily have to be quashed because the parties have not enjoyed all the guarantees of Article 6, but each Contracting State may decide itself on which grounds an arbitral award should be quashed.’
TThe mere appearance of a lack of independence or impartiality on the part of an arbitrator did not lead to the quashing of an award under Dutch law, which required either that there was in fact a lack of independence or impartiality or that the doubts in that regard were so grave that the disadvantaged party could not be required to accept the award. ‘[The Commission] considers that Article 6 para 1 of the Convention does not require the Dutch courts to apply a different criterion in determining whether or not to quash an arbitral award. It finds it reasonable that in this respect Dutch law requires strong reasons for quashing an already rendered award, since the quashing will often mean that a long and costly arbitral procedure will become useless and that considerable work and expense must be invested in new proceedings.
The Commission furthermore notes that in the proceedings before the national courts themselves the applicants were provided with ample opportunity to state their case and to challenge the arguments of the adverse party.’ The Commission stressed the pivotal role of the national courts in considering whether there has been a breach of article 6 in a particular case relating to arbitration. The more important the article 6 right the greater the scrutiny to be expected. It is easier to waive the requirement that the arbitration proceedings be in public than the requirement that the arbitrators be impartial.

Citations:

Unreported 1996

Jurisdiction:

Human Rights

Citing:

Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .

Cited by:

Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 May 2022; Ref: scu.250545

Nitecki v Poland: ECHR 21 Mar 2002

The applicant was an elderly man suffering from a life-threatening condition known as amyotrophic lateral sclerosis (ALS). He was prescribed the drug Rilutek to treat the disease but could not afford to pay for it.
Held: His complaints to the European Court of Human Rights under Articles 2, 8 and 14 of the Convention were found to be inadmissible. The Court held that: ‘an issue may arise under Article 2 where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of healthcare which they have undertaken to make available to the population generally . . ‘

Citations:

65653/01

Jurisdiction:

Human Rights

Cited by:

Cited – Rogers, Regina (on the Application of) v Secretary of State for Health Admn 15-Feb-2006
The claimant suffered breast cancer. She sought treatment from the defendant with a drug called Herceptin, and now sought judicial review of the refusal of such treatment. Various stages in the licensing of the drug were yet to be completed. It was . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Health

Updated: 01 May 2022; Ref: scu.238559

Oludoyi and Others, Regina v Home Secretary (Article 8 – MM (Lebanon) and Nagre) (IJR): UTIAC 29 Oct 2014

UTIAC There is nothing in R (Nagre) v SSHD [2013] EWHC 720 (Admin), Gulshan (Article 8 – new Rules – correct approach) Pakistan [2013] UKUT 640 (IAC) or Shahzad (Art 8: legitimate aim) [2014] UKUT 85 (IAC) that suggests that a threshold test was being suggested as opposed to making it clear that there was a need to look at the evidence to see if there was anything which has not already been adequately considered in the context of the Immigration Rules and which could lead to a successful Article 8 claim. These authorities must not be read as seeking to qualify or fetter the assessment of Article 8. This is consistent with para 128 of R (MM and Others) v SSHD [2014] EWCA Civ 985, that there is no utility in imposing a further intermediate test as a preliminary to a consideration of an Article 8 claim beyond the relevant criterion-based Rule. As is held in R (Ganesabalan) v SSHD [2014] EWHC 2712 (Admin), there is no prior threshold which dictates whether the exercise of discretion should be considered; rather the nature of the assessment and the reasoning which are called for are informed by threshold considerations.

Judges:

Gill Utj

Citations:

[2014] UKUT 539 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 01 May 2022; Ref: scu.543189

Regina (C) v Mental Health Review Tribunal and Others: QBD 17 Jan 2005

C applied for judicial review of the refusal by the respondent to order his absolute discharge, and the continuation of the restriction order. He said the tribunal had taken account of earlier reporst referring to a psychopathic personality disorder, when the original restriction order had only referred to a mental illness. He also complained at the absence of criteria to guide the tribunal in considering an application.
Held: The claimant had been made subject to a hospital order after conviction for grievous bodily harm. The order imposed restrictions indefinitely. The case of B -v- Ashworth referred only to cases involving compulsory treatment. The Act allowed the possibility of making restrictions or directing a conditional discharge even where in the absence of a mental disorder, for example where he was in remission. Since there was no necessary connection between the disorder for which the patient had been first confined and and the grounds applicable on a conditional discharge, there was no reason either to make such a connection under section 75. Though the exact criteria were not set out the statute went a long way to identify the relevant factors, and the availablity of various remedies gave important safeguards. The section was not incompatible with the claimant’s human rights.

Judges:

Munby J

Citations:

Times 24-Jan-2005

Statutes:

Mental Health Act 1983 75(3)

Jurisdiction:

England and Wales

Citing:

Distinguished – B, Regina (on the Application of) v Ashworth Hospital Authority CA 15-Apr-2003
B having been made subject to a court hospital order classifying him as suffering from a mental illness, complained when he was later detained under section 63 as subject to a personality disorder.
Held: At all times, B was classified as . .
Cited – Regina (IH) v Secretary of State for the Home Department and Another CA 15-May-2002
The applicant was a restricted mental patient. His conditional release had been ordered, but required a consultant psychiatrist to be found who would agree to supervise him. None such could be found, and his detention continued. After two years he . .
Cited – L, Regina (on the Application of) v Secretary of State for the Home Department and Another Admn 23-Apr-2004
. .
Cited – Regina (Secretary of State for the Home Department) v Mental Health Review Tribunal Admn 2004
. .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 30 April 2022; Ref: scu.223066

Wood v United Kingdom: ECHR 16 Nov 2004

Police officers had placed suspects in a cell together and covertly recorded their conversation in order to obtain evidence against them. The events took place in 1999.
Held: The recording was outside any legal system of control and interefred with the defendants right to respect for his private life. The action infringed both articles 8 and 13.

Citations:

Times 23-Nov-2004

Statutes:

European Convention on Human Rights 8 13

Jurisdiction:

Human Rights

Citing:

Cited – Khan v The United Kingdom ECHR 12-May-2000
Evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. The police had installed covert listening devices on private property without the knowledge or consent of the owner. UK national law did . .
Cited – Taylor-Sabori v The United Kingdom ECHR 22-Oct-2002
The applicant had been convicted of serious criminal offences. There were admitted into evidence intercepts of messages to his pager. He complained that this infringed his right to respect for his private correspondence.
Held: The pager . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 30 April 2022; Ref: scu.219691

Henworth v United Kingdom: ECHR 2 Nov 2004

The claimant had been tried for murder, but had undergone two retrials. On the second he said there was a rule of law that a defendant should not be tried a third time after two juries had failed to agree a conviction. He refused to take any part and was convicted.
Held: Whatever part the defendant played in slowing down proceedings, the authorities had a responsibility themselves to expedite a trial. The reasonableness of the length of proceedings was to be viewed in the context of each case. In this case there had been a substantial an unexplained delay in hearing the appeal, and a shorter delay before the third trial. While there were no unusually long periods of inactivity, the circumstances of a third trial demanded a particular need for speed. The applicant’s human rights had been infringed.

Citations:

Times 22-Nov-2004, 505/02

Jurisdiction:

Human Rights

Citing:

See Also – Regina v Henworth CACD 30-Jan-2001
There is no rule of law to say that a third trial taken as far as a jury decision was an abuse of process. Dicta that that was the case were obiter. The question of whether there was oppression was to be decided on the facts of each case. . .

Cited by:

See Also – Regina v Henworth CACD 30-Jan-2001
There is no rule of law to say that a third trial taken as far as a jury decision was an abuse of process. Dicta that that was the case were obiter. The question of whether there was oppression was to be decided on the facts of each case. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 30 April 2022; Ref: scu.219861

Bates v United Kingdom: ECHR 16 Jan 1996

The claimant sought to challenge the rebuttable presumption as to the breed of a dog enacted in section 5(5) of the Act.
Held: The applicant had been entitled but, although represented, had failed, to call evidence to prove at trial that his dog was not of the breed proscribed by the Act, and that the court had relied on an admission by him that the dog was of the breed proscribed. The section was held to fall within reasonable limits. The complaint was inadmissible.

Citations:

26280/95, Unreported, 16 January 1996

Statutes:

Dangerous Dogs Act 1991 5

Jurisdiction:

Human Rights

Cited by:

Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Animals, Crime

Updated: 30 April 2022; Ref: scu.218814

Attorney General v Malta: 10 Dec 1991

The applcant challenged a provision which imposed criminal liability on a director of a body which had committed a criminal offence ‘unless he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of the offence’. The Commission found the application to be manifestly ill-founded. The applicant was provided under the legislation with the possibility of exculpating himself, and the Maltese courts enjoyed a genuine freedom of assessment. The provision had not been applied to the applicant in a manner incompatible with the presumption of innocence.

Citations:

Unreported, 10 December 1991, 16641/90

Jurisdiction:

Human Rights

Citing:

Cited – Salabiaku v France ECHR 7-Oct-1988
A Zairese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, . .

Cited by:

Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 30 April 2022; Ref: scu.218812

Porras v Netherlands: ECHR 18 Jan 2000

The applicant was convicted of intentionally importing cocaine and he complained that the burden of proof had been reversed by imposing on him an obligation, which he found impossible to discharge, to prove that he was not and could not have been aware that persons unknown to him had hidden a significant quantity of the drug in his luggage. The Court rejected this complaint, holding that no irrebuttable presumption of guilt had been applied. Although accepting a normal assumption that a person who packs his own luggage and takes it with him knows of the contents, the Dutch court had had regard to the possibility that this might not be so, had considered all the circumstances, had weighed all the evidence and had not therefore relied automatically on any presumption.

Citations:

Unreported, 18 January 2000, 49226/99

Jurisdiction:

Human Rights

Cited by:

Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 30 April 2022; Ref: scu.218815

Nylund v Finland: ECHR 29 Jun 1999

Sometimes the relationship between a child’s unmarried parents will be so exiguous that there will be no ipso jure family life as between the natural father and his child. But family life may nonetheless be shown to exist: ‘the Court considers that Article 8 cannot be interpreted as only protecting ‘family life’ which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between a natural father and a child born out of wedlock. Relevant factors in this regard include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the natural father to the child both before and after the birth.’ In this case, the father’s claim to family life failed.

Citations:

Unreported – 29 June 1999

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Human Rights, Family

Updated: 30 April 2022; Ref: scu.200326

Hounga v Allen and Another: SC 30 Jul 2014

The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging racial discrimination, but the only element of her claim which succeeded was of unfair dismissal, rejecting others saying that it had no jurisdiction. The defendants argued that the contract was unlawful, asking the Court: ‘In what circumstances should the defence of illegality defeat a complaint by an employee that an employer has discriminated against him by dismissing him contrary to section 4(2)(c) of the Race Relations Act 1976? ‘
Held: The claimant’s appeal was allowed. The defence of illegality of the employment of an illegal immigrant did not operate to defeat a claim of the tort of discrimination.
Lord Wilson set out a definition of human trafficking: ‘The accepted international definition of trafficking is contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (‘the Palermo Protocol’) signed in 2000 and ratified by the UK on 9 February 2006. Article 3 provides:
‘(a) ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability . . for the purpose of exploitation. Exploitation shall include, at a minimum, . . sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article’.’
Lord Wilson said: ‘The defence of illegality rests upon the foundation of public policy. ‘The principle of public policy is this . . ‘ said Lord Mansfield by way of preface to his classic exposition of the defence in Holman v Johnson (1775) 1 Cowp 341, 343. ‘Rules which rest upon the foundation of public policy, not being rules which belong to the fixed or customary law, are capable, on proper occasion, of expansion or modification’: Maxim Nordenfelt Guns and Ammunition Co Nordenfelt [1893] 1 Ch 630, 661 (Bowen LJ). So it is necessary, first, to ask ‘What is the aspect of public policy which founds the defence?’ and, second, to ask ‘But is there another aspect of public policy to which application of the defence would run counter?”
Lord Hughes said: ‘When a court is considering whether illegality bars a civil claim, it is essentially focussing on the position of the claimant vis-a-vis the court from which she seeks relief. It is not primarily focusing on the relative merits of the claimant and the defendant. It is in the nature of illegality that, when it succeeds as a bar to a claim, the defendant is the unworthy beneficiary of an undeserved windfall. But this is not because the defendant has the merits on his side; it is because the law cannot support the claimant’s claim to relief. ‘
Lord Toulson’s concluded generally:
‘Looking behind the maxims, there are two broad discernible policy reasons for the common law doctrine of illegality as a defence to a civil claim. One is that a person should not be allowed to profit from his own wrongdoing. The other, linked, consideration is that the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes with the right hand.’
Lord Toulson set out how the courts should approach the question:
‘So how is the court to determine the matter if not by some mechanistic process? In answer to that question I would say that one cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to the public interest, because it would be harmful to the integrity of the legal system, without (a) considering the underlying purpose of the prohibition which has been transgressed, (b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and (c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality. We are, after all, in the area of public policy. That trio of necessary considerations can be found in the case law. . . The courts must obviously abide by the terms of any statute, but I conclude that it is right for a court which is considering the application of the common law doctrine of illegality to have regard to the policy factors involved and to the nature and circumstances of the illegal conduct in determining whether the public interest in preserving the integrity of the justice system should result in denial of the relief claimed. I put it in that way rather than whether the contract should be regarded as tainted by illegality, because the question is whether the relief claimed should be granted.’
Lord Toulson brought the elements together: ‘The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary (a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, (b) to consider any other relevant public policy on which the denial of the claim may have an impact and (c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.’

Judges:

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

Citations:

[2014] UKSC 47, [2014] ICR 847, [2014] Eq LR 559, [2014] 4 All ER 595, [2014] 1 WLR 2889, [2014] IRLR 811, [2014] WLR(D) 353, UKSC 2012/0188

Links:

Bailii, Bailii Summary, WLRD, SC Summary, SC

Jurisdiction:

England and Wales

Citing:

At EAT – Allen (Nee Aboyade-Cole) v Hounga and Another EAT 31-Mar-2011
EAT JURISDICTIONAL POINTS – Fraud and illegality
The Claimant brought claims for unfair dismissal, breach of contract, unpaid wages and unpaid holiday pay as well as racial discrimination arising out of her . .
At CA – Hounga v Allen and Another CA 15-May-2012
. .
Cited – Boulter v Clark 1747
A party to an illegal prize fight who is damaged in the conflict cannot sue for assault . .
Cited – National Coal Board v England HL 1954
The plaintiff sought damages after being injured when a co-worker fired a shot. The employee however had himself coupled the detonator to the cable rather than leaving it to the shotfirer, and had his cimmitted a criminal offence. He had been found . .
Cited – Saunders v Edwards CA 24-Mar-1986
The parties had agreed for the sale and purchase of land and chattels, but had deliberately misdescribed the apportionment so as to reduce tax liability. The purchasers then brought an action for misrepresentation. The vendor replied that the action . .
Cited – Howard v Shirlstar Container Transport Ltd CA 1990
The parties contracted for the recovery from Nigeria of an aircraft owned by the defendants which was being detained by the Nigerian authorities at Lagos. Under the contract, the plaintiff was entitled to recover a fee of andpound;25,000 if he . .
Cited – Cross v Kirkby CA 18-Feb-2000
The claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted to the defendant ‘You’re fucking dead’ and jabbed him in the chest and throat with a broken baseball bat. In order to ward off further blows, the defendant . .
Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – Enfield Technical Services Ltd v Payne; Grace v BF Components Ltd EAT 25-Jul-2007
EAT Unfair dismissal – Exclusions including worker/jurisdiction
These two appeals consider the circumstances in which contracts will be considered illegal so as to preclude an employee from taking claims . .
Cited – Enfield Technical Services Ltd v Payne and Another CA 22-Apr-2008
The appellant company appealed dismissal of their defence to a claim for unfair dismissal that the employment contract was tainted with illegality. The EAT had heard two cases with raised the question of the effect on unfair dismissal claims of . .
Cited – V v Addey and Stanhope School CA 30-Jul-2004
The respondent resisted a claim of unfair dismissal and race discrimination on the basis that the employment contract was illegal since the claimant was an immigrant and unable to work without a work permit.
Held: The Court of Appeal upheld a . .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Hall v Hebert 29-Apr-1993
(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a muscle car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car . .
Cited – Regina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
Cited – Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
Cited – Siliadin v France ECHR 26-Jul-2005
(French Text) A 15-year-old girl, had been brought from Togo to France and made to work for a family without pay for 15 hours a day. She had been held in servitude and required to perform forced labour
Held: France had violated article 4 by . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Cited – Rantsev v Cyprus And Russia ECHR 7-Jan-2010
A Russian woman, aged 20, had gone to work as an artiste in a cabaret in Cyprus. Three weeks later she was found dead in a street.
Held: The Court upheld her father’s complaint that Cyprus was in breach of article 4 in that its regime for the . .
Cited – LM and Others v Regina; Regina v M(L), B(M) and G(D) CACD 21-Oct-2010
Each defendant appealed saying that being themselves the victims of people trafficking, the prosecutions had failed to take into account its obligations under the Convention.
Held: Prosecutors had ‘a three-stage exercise of judgment. The first . .
Cited – CN v The United Kingdom ECHR 13-Nov-2012
The claimant said that having been raped repeatedly in Uganda, she had fled to England, where her passport was taken and she was forced to work and her earnings taken, and she was held captive. On escaping, her application for asylum was refused. . .
Cited – L and Others v The Children’s Commissioner for England and Another CACD 21-Jun-2013
Even where it has been clearly established that a defendant had been trafficked that should not provide him with immunity from prosecution for a criminal offence. Lord Judge CJ explained that: ‘it has not, however, and could not have been argued . .

Cited by:

Cited – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Taiwo and Another v Olaigbe and Others SC 22-Jun-2016
The claimants had been brought here illegally to act as servants for the defendants. They were taken advantage of and abused. They made several claims, but now appealed against rejection of their claims for discrimination. The court was asked . .
Cited – Henderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Human Rights, Torts – Other

Updated: 29 April 2022; Ref: scu.535439

Procter and Gamble Company v Office for the Harmonisation in the Internal Market (Trade Marks and Designs): ECJ 12 Dec 2002

ECJ A case had been referred back to the Office board by the court of first instance. The applicant complained when the same panel members were listed to hear the case again,
Held: The Board of Appeal exercised the same function as the examiner. When it acted, it did so as the administration of the office in exercising those powers, and thus the Board was not properly classified as a tribunal, and therefore no right of fairness to a hearing applied.

Citations:

Times 28-Dec-2002

Jurisdiction:

European

Intellectual Property, Human Rights

Updated: 28 April 2022; Ref: scu.178609

Regina (Howard and Another) v Secretary of State for Health: QBD 15 Mar 2002

The applicants sought orders that enquiries into the activities of doctors under the Act should be held in public.
Held: The Act contained no presumption that enquiries should be in public, and the Wagstaff case created no general principle to that effect. The right to free expression did not include the right to receive from others information they were unwilling to impart. It was for the Secretary of State to make a decision in each case, and his decisions stood.

Judges:

Justice Scott Baker

Citations:

Times 28-Mar-2002, Gazette 23-May-2002

Statutes:

National Health Service Act 1977 2, European Convention on Human Rights Art 10.1

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for Health, Ex Parte Wagstaff etc QBD 31-Aug-2000
The Secretary of State announced a public enquiry into the Shipman case. He did not say whether it would be a public enquiry. The bereaved families and media wanted it to be public, and contended that it had been invalidly constituted, that an . .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Lists of cited by and citing cases may be incomplete.

Administrative, Health Professions, Human Rights

Updated: 28 April 2022; Ref: scu.168067

Regina v Taylor (Paul Simon): CACD 23 Oct 2001

The laws against the misuse of cannabis did not infringe the defendant’s human rights to freedom of religion. The defendant asserted that his use of cannabis was in accordance with the exercise of his Rastafarian religion. In the light of international convention, it could be seen that the control of the use of marijuana could be a proper and necessary limitation of the rights of the individual.

Judges:

Lord Justice Rose, Mr Justice Davis and Sir Richard Tucker

Citations:

Times 15-Nov-2001, Gazette 22-Nov-2001

Statutes:

European Convention on Human Rights Art 9.1, Misuse of Drugs Act 1971, Single Convention on Narcotic Drugs 1961, United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988

Jurisdiction:

England and Wales

Crime, Human Rights

Updated: 28 April 2022; Ref: scu.166807

Pine Valley Developments Ltd And Others v Ireland: ECHR 29 Nov 1991

ECHR Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); No violation of P1-1; No violation of Art. 14+P1-1; Violation of Art. 14+P1-1; No violation of Art. 13; Just satisfaction reserved
The Court found a violation of Article 1 of Protocol No. 1 in circumstances where the domestic courts declared the planning permission a nullity on the ground that it had been granted ultra vires. A legitimate expectation relating to property may constitute a possession protected by Article 1 at any rate if it can be regarded as a component of property protected by Article 1. a legitimate expectation may arise notwithstanding the fact that it was beyond the powers of the public body which fostered the expectation to realise the expectation. The legitimate expectation cannot entitle a party to realisation by the public body of the expectation which it is beyond the powers of the public body to realise, but may entitle him to other relief which it is within the powers of the public body to afford, e.g. the benevolent exercise of a discretion available to alleviate the injustice or payment of compensation. The fact that the expectation was founded on an ultra vires act or that the public body had no power to realise the expectation raised and the reason why in law it had no such power (e.g. the potential adverse effect on third parties) may be a reason, and indeed a strong reason, going to the justification for the interference and its proportionality.

Citations:

Times 11-Dec-1991, 12742/87, 43/1990/234/300, [1991] 14 EHRR 319

Statutes:

European Convention on Human Rights 1

Jurisdiction:

Human Rights

Cited by:

Cited – Stretch v The United Kingdom ECHR 24-Jun-2003
The claimant had taken a lease of property from a local authority. Relying upon an option for renewal, he invested substantially in the property, but it was then decided that the option was ultra vires.
Held: Property rights protected under . .
Cited – Rowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
Cited – Times Newspapers Ltd and Others v Flood and Others SC 11-Apr-2017
Three newspaper publishers, having lost defamation cases, challenged the levels of costs awarded against them, saying that the levels infringed their own rights of free speech.
Held: Each of the three appeals was dismissed. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Planning

Updated: 28 April 2022; Ref: scu.165131

Nencheva And Others v Bulgaria: ECHR 18 Jun 2013

The Court was concerned with State-run care homes where appallingly substandard conditions had been tolerated over a significant period. Nencheva involved a municipal home for children with severe mental disorders. The Fourth Section said:
‘The Court therefore takes it as established that the public authorities, at several levels, had exact knowledge of the reality of the danger as regards the state of health of the children living in the Dzhurkovo home. The Court notes that the headmistress had incessantly pointed out the seriousness of the living conditions and the difficulty of providing the children with the necessary care, and called for the help of numerous public or humanitarian structures (see paragraphs 32-37 above). The Court therefore takes it as established that the public authorities, at several levels, had exact knowledge of the reality of the danger as regards the state of health of the children living in the Dzhurkovo home. Moreover, at that time the mortality rate in the home was considerably higher than usual.
It should then be noted that – and this is a crucial element in the case – the occurrence of the tragic events was not sudden, one-off and unforeseen, as in the case of an event of force majeure to which the State might not be able to cope. The cases of death followed one another and the drama of the home was thus spread over time. Indeed, fifteen children and young adults, seven of whom were the children of the applicants, died between 15 December 1996 and 14 March 1997, that is to say during a period of approximately three months. This element should have seemed suspicious at the very least and required an explanation.’

Citations:

48609/06 – Chamber Judgment (French Text), [2013] ECHR 554

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Gardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others Admn 27-Apr-2022
Patient transfer policy was unlawful
The claimants had relatives who died in care homes early in the COVID-19 pandemic. They said that the policy of moving patients from hospitals to care homes without testing had contributed to the deaths, and many others, and had been unlawful. The . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 28 April 2022; Ref: scu.510982

Lopes De Sousa Fernandes v Portugal: ECHR 19 Dec 2017

ECHR The Court was concerned with denial of access to medical treatment. The court held that in cases involving alleged medical negligence the State’s positive obligations were regulatory, including ‘necessary measures to ensure implementation, including supervision and enforcement.’ It continued by noting at [183] that medical negligence cases in which States have been held liable under Article 2 are ‘exceptional ones in which the fault attributable to the health care providers went beyond a mere error or medical negligence. It added:
For the Court’s examination of a particular case, the question whether there has been a failure by the State in its regulatory duties calls for a concrete assessment of the alleged deficiencies rather than an abstract one. In this regard, the Court reiterates that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see Roman Zakharov v. Russia [GC], no. 47143/06, ss 164, ECHR 2015 and the cases cited therein). Therefore, the mere fact that the regulatory framework may be deficient in some respect is not sufficient in itself to raise an issue under Article 2 of the Convention. It must be shown to have operated to the patient’s detriment (compare and contrast Z v. Poland, cited above, ssss 110-12, and Arskaya, cited above, ssss 84-91).
It must, moreover, be emphasised that the State’s obligation to regulate must be understood in a broader sense which includes the duty to ensure the effective functioning of that regulatory framework. The regulatory duties thus encompass necessary measures to ensure implementation, including supervision and enforcement.
On the basis of this broader understanding of the State’s obligation to provide a regulatory framework, the Court has accepted that, in the very exceptional circumstances described below, the responsibility of the State under the substantive limb of Article 2 of the Convention may be engaged in respect of the acts and omissions of health-care providers.
The first type of exceptional circumstances concerns a specific situation where an individual patient’s life is knowingly put in danger by denial of access to life-saving emergency treatment (see, for example, Mehmet Senturk and Bekir Senturk, and, by contrast, Sayan, both cited above). It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.
The second type of exceptional circumstances arises where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising, thus putting the patients’ lives, including the life of the particular patient concerned, in danger (see, for example, Asiye Genc and Aydogdu, both cited above).
The Court is aware that on the facts it may sometimes not be easy to distinguish between cases involving mere medical negligence and those where there is a denial of access to life-saving emergency treatment, particularly since there may be a combination of factors which contribute to a patient’s death.
However, the Court reiterates at this juncture that, for a case to fall into the latter category, the following factors, taken cumulatively, must be met. Firstly, the acts and omissions of the health-care providers must go beyond a mere error or medical negligence, in so far as those health-care providers, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person’s life is at risk if that treatment is not given (see Mehmet Senturk and Bekir Senturk, cited above, ss 104).
Secondly, the dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the State authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly.
Thirdly, there must be a link between the dysfunction complained of and the harm which the patient sustained. Finally, the dysfunction at issue must have resulted from the failure of the State to meet its obligation to provide a regulatory framework in the broader sense indicated above.’

Citations:

56080/13, [2017] ECHR 1174

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Cited – Lopes De Sousa Fernandes v Portugal ECHR 15-Dec-2015
(Grand Chamber) . .

Cited by:

Cited – Gardner and Another, Regina (on The Application of) v Secretary of State for Health and Social Care and Others Admn 27-Apr-2022
Patient transfer policy was unlawful
The claimants had relatives who died in care homes early in the COVID-19 pandemic. They said that the policy of moving patients from hospitals to care homes without testing had contributed to the deaths, and many others, and had been unlawful. The . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 28 April 2022; Ref: scu.608206

Loizidou v Turkey (Merits): ECHR 18 Dec 1996

The court was asked whether Turkey was answerable under the Convention for its acts in Northern Cyprus.
Held: It was unnecessary to determine whether Turkey actually exercised detailed control over the policies and actions of the authorities of the TRNC. It was obvious from the fact that more than 30,000 Turkish military personnel were engaged in active duties in northern Cyprus that her army exercised effective control over that part of the island. Such control entailed her responsibility for the policies and actions of the TRNC. Those affected by such policies or actions (including the applicant) therefore came within the ‘jurisdiction’ of Turkey for the purposes of Article 1 of the ECHR.

Citations:

[1996] ECHR 70, 15318/89

Links:

Worldlii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

See Also – Loizidou v Turkey ECHR 23-Mar-1995
(Preliminary objections) The ECHR considered the situation in northern Cyprus when it was asked as to Turkey’s preliminary objections to admissibility: ‘although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ . .

Cited by:

See Also – Loizidou v Turkey (Article 50) ECHR 28-Jul-1998
Hudoc Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings; Costs and expenses – claim rejected (State) . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
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

Updated: 27 April 2022; Ref: scu.165478