Tag: Human Rights

Kozma v Romania: ECHR 11 Apr 2017

ECHR Judgment : Violation of Article 6 – Right to a fair trial Article 6 – Civil proceedings Article 6-1 – Fair hearing
ECHR Judgment : Pecuniary and non-pecuniary damage – award : Fourth Section Committee

22342/08, [2017] ECHR 351, [2018] ECHR 840
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights

Updated: 14 January 2022; Ref: scu.607491

Secretary of State for The Home Department v Said: CA 6 May 2016

The court was asked whether the Upper Tribunal (Immigration and Asylum Chamber) was right to conclude that the deportation of the respondent, AS, to Somalia would violate his rights guaranteed by article 3 of the European Convention on Human Rights.

Christopher Clarke, Sharp, Burnett LJJ
[2016] EWCA Civ 442
Bailii
European Convention on Human Rights 3
England and Wales

Immigration, Human Rights

Updated: 14 January 2022; Ref: scu.563144

Goodwin v NGN Ltd and VBN: QBD 9 Jun 2011

The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards the claimant, but now it additionally sought to identify the woman involved.
Held: Tugendhat J said: ‘what is of interest to the public is not the same as what it is in the public interest to publish. Newspaper editors have the final decision on what is of interest to the public: judges have the final decision what it is in the public interest to publish.’ The newspaper had first alleged that she had been involved in deciding his severance package, but when challenged accepted that this was not true. They then said that the woman’s identity was not needed for the story. NGN then argued that she had been promoted while he was Chief Executive. Again they now accepted this was wrong. They then said that the relationship should have been disclosed, but, having been disclosed the bank had made no critism of her.
Though it was not clear that, in view of the claimant’s position, the woman would establish an expectation of privacy at trial, there are degrees of privacy, and allowing the publication of identifying details would remain a disproportionate interference in her private life, though the injunction was relaxed to allow publication of her job description. The countervailing article 10 rights did not in this case justify further intrusion.

Tugendhat J
[2011] EWHC 1437 (QB)
Bailii
European Convention on Human Rights 8 10
England and Wales
Citing:
See Also – MNB v News Group Newspapers Ltd QBD 9-Mar-2011
The defendant resisted an order preventing disclosure of information said by the claimant to be private.
Held: At the start of the hearing before herself, she had been told that the application for an interim injunction was no longer opposed. . .
See Also – Goodwin v News Group Newspapers Ltd QBD 23-May-2011
The claimant had obtained orders restricting publication by the defendant of stories of his relationship with a woman. The order had also restrained publication of their names. The names had since been revealed under parliamentary prvilege, and the . .
See Also – Goodwin v News Group Newspapers Ltd QBD 27-May-2011
An associated claimant alleged contempt against another newspaper for publishing matters so as to defeat the purposes of a privacy injunction granted to her.
Held: Even though the principle claimant had been subsequenty identified with the . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – CTB v News Group Newspapers Ltd and Thomas (2) QBD 23-May-2011
The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. . .
Cited – ETK v News Group Newspapers Ltd CA 19-Apr-2011
The claimant appealed against refusal of an injunction to restrain the defendant newspaper from publishing his name in connection with a forthcoming article. The claimant had had an affair with a co-worker. Both were married. The relationship ended, . .
Cited – Thomas v News Group Newspapers Ltd and Simon Hughes CA 18-Jul-2001
A civilian police worker had reported officers for racist remarks. The newspaper repeatedly printed articles and encouraged correspondence which was racially motivated, to the acute distress of the complainant.
Held: Repeated newspaper stories . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – JIH v News Group Newspapers Ltd CA 31-Jan-2011
Principles on Request for Anonymity Order
The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
Cited – Ntuli v Donald CA 16-Nov-2010
The defendant sought the discharge of a super-injunction, an order against not only the identification of the parties, but also the existence of the proceedings.
Held: The order preventing publication of the underlying allegations remained, . .
Cited – X and Y v Persons Unknown QBD 8-Nov-2006
The claimants sought an injunction against unknown persons who were said to have divulged confidential matters to newspapers. The order had been served on newspapers who now complained that the order was too uncertain to allow them to know how to . .
Cited – JIH v News Group Newspapers Ltd QBD 5-Nov-2010
The court was asked as to the circumstances under which the identity of a claimant should be protected in an action where he sought to restrain the publication of private information about him.
Held: Tugendhat J accepted the proposition . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – A v The United Kingdom ECHR 17-Dec-2002
The applicant complained that the absence of legal aid to allow a challenge what had been said about her in Parliament by way of defamation, violated her right of access to court.
Held: The right to absolute parliamentary privilege was within . .
Cited – Mosley v The United Kingdom ECHR 10-May-2011
The claimant complained of the reporting of a sexual encounter which he said was private.
Held: The reporting of ‘tawdry allegations about an individual’s private life’ does not attract the robust protection under Article 10 afforded to more . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .

Cited by:
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
Cited – Ferdinand v MGN Limited QBD 29-Sep-2011
The claimant, a famous footballer, complained that an article by the defendant relating an affair he had had, had infringed his right to privacy. The defendant relied on its right to freedom of expression. The claimant had at an earlier stage, and . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Updated: 12 January 2022; Ref: scu.440470

CTB v News Group Newspapers Ltd and Another (1): QBD 16 May 2011

A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that there was any proper public interest in the proposed publication, and balancing the article 10 and 8 rights on the facts of the case, the injunction should continue.
Eady J denied any recent creation of a right of privacy by the courts, saying: ‘The courts are required to carry out a balancing exercise between competing Convention rights, as was always overtly acknowledged by the government prior to the enactment of the Human Rights Act 1998. It was, for example, explained by the then Lord Chancellor, Lord Irvine, when the bill was before the House of Lords on 24 November 1997 (Hansard, HL Debates, Col.785). He said that any privacy law developed by the judges following the enactment would be a better law because they would have to balance and have regard to both Article 8 and Article 10 (as indeed has been happening over the last decade). When the statute came into effect in October 2000, it explicitly required the courts to take into account Strasbourg jurisprudence when discharging those responsibilities.
Despite this long history, it has for several years been repeatedly claimed in media reports that courts are ‘introducing a law of privacy by the back door’. Yet the principles have long been open to scrutiny. They are readily apparent from the terms of the Human Rights Act, and indeed from the content of the European Convention itself. Furthermore, they were clearly expounded seven years ago in two decisions of the House of Lords which was, of course, at that time the highest court in this jurisdiction: Campbell v MGN Ltd [2004] 2 AC 457 and Re S (A Child) [2005] 1 AC 593.
Since those decisions were promulgated in 2004, the law has been loyally applied by the courts in a wide variety of circumstances and exhaustively explained in numerous appellate judgments. ‘

Eady J
[2011] EWHC 1232 (QB)
Bailii
European Convention on Human Rights 8 10
England and Wales
Citing:
Cited – Ambrosiadou v Coward CA 12-Apr-2011
The claimant appealed against a refusal to continue an injunction restricting publication of documents filed within divorce ancillary relief proceedings. . .
Cited – Ntuli v Donald CA 16-Nov-2010
The defendant sought the discharge of a super-injunction, an order against not only the identification of the parties, but also the existence of the proceedings.
Held: The order preventing publication of the underlying allegations remained, . .
Cited – ETK v News Group Newspapers Ltd CA 19-Apr-2011
The claimant appealed against refusal of an injunction to restrain the defendant newspaper from publishing his name in connection with a forthcoming article. The claimant had had an affair with a co-worker. Both were married. The relationship ended, . .
Applied – JIH v News Group Newspapers Ltd CA 31-Jan-2011
Principles on Request for Anonymity Order
The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – Associated Newspapers Ltd v Prince of Wales CA 21-Dec-2006
The defendant newspaper appealed summary judgment against it for breach of confidence and copyright infringement having published the claimant’s journals which he said were private.
Held: Upheld, although the judge had given insufficient . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – ASG v GSA CA 21-Aug-2009
Appeal against refusal of a without notice injunction preventing publication of information said to be confidential. . .
Cited – HM Attorney General v Seckerson and Times Newspapers Ltd Admn 13-May-2009
The first defendant had been foreman of a jury in a criminal trial. He was accused of disclosing details of the jury’s votes and their considerations with concerns about the expert witnesses to the second defendant. The parties disputed the extent . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – X and Y v Persons Unknown QBD 8-Nov-2006
The claimants sought an injunction against unknown persons who were said to have divulged confidential matters to newspapers. The order had been served on newspapers who now complained that the order was too uncertain to allow them to know how to . .
Cited – Regina v Broadcasting Complaints Commission Ex Parte Granada Television Ltd CA 16-Dec-1994
The Broadasting Complaints Commission had been established to determine questions of privacy, and the courts should be slow to intervene. The right of privacy of an individual had not been lost by past publicity. That privacy had been infringed by . .
Cited – Mosley v The United Kingdom ECHR 10-May-2011
The claimant complained of the reporting of a sexual encounter which he said was private.
Held: The reporting of ‘tawdry allegations about an individual’s private life’ does not attract the robust protection under Article 10 afforded to more . .
Cited – Jameel v Wall Street Journal Europe Sprl HL 11-Oct-2006
The House was asked as to the capacity of a limited company to sue for damage to its reputation, where it had no trading activity within the jurisdiction, and as to the extent of the Reynolds defence. The defendants/appellants had published an . .
Cited – Venables and Thompson v News Group Newspapers and others QBD 8-Jan-2001
Where it was necessary to protect life, an order could be made to protect the privacy of individuals, by disallowing publication of any material which might identify them. Two youths had been convicted of a notorious murder when they were ten, and . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .

Cited by:
See Also – CTB v News Group Newspapers Ltd and Another (3) QBD 23-May-2011
The defendant applied to be released from an injunction protecting the claimant’s privacy. It said that the claimant’s identity had been revealed on Twitter and now by a member of parliament in parliament.
Held: The application was refused. . .
See Also – CTB v News Group Newspapers Ltd and Thomas (2) QBD 23-May-2011
The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. . .
Cited – OPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights

Updated: 12 January 2022; Ref: scu.439743

CTB v News Group Newspapers Ltd and Thomas (2): QBD 23 May 2011

The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. Additionally the claimant said that given that the defendant claimed to have clean hands in the matter, it should provide disclosure of dicuments which might support or undermine that claim.
Held: The applications failed. That the defendant still wanted to pubish the story was itself evidence that there remained some privacy to protect, and: ‘the right question for me to ask . . is whether there is a solid reason why the Claimant’s identity should be generally revealed in the national media, such as to outweigh the legitimate interests of himself and his family in maintaining anonymity. The answer is as yet in the negative. They would be engulfed in a cruel and destructive media frenzy. Sadly, that may become unavoidable in the society in which we now live but, for the moment, in so far as I am being asked to sanction it, I decline to do so.’
The defendant having reduced its ‘clean hands’ claim to one of there being no evidence to contradict it, detailed disclosure remained unnecessary at this stage. The court also bore in mind that such a search might reveal criminal attempts to undermine the court order, and this would require consideration of the laws against requiring self-incrimination.
Eady considered the argument that the information was already in the public domain: ‘one reason why it can be important to distinguish between the was the law approaches public domain arguments in relation to commercial or state secrets, for example, and that which is appropriate to personal information. It also largely explains why it is the case that the truth of falsity of the allegations in question can often be irrelevant: see e.g. McKennitt v Ash [2008] QB 73 . . It is fairly obvious that wall-to-wall excoriation in national newspapers . . is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the internet or in foreign journals to those, however many, who take the trouble to look it up. Moreover, with each exposure of personal information or allegations, whether by way of visual images or verbally, there is a new intrusion and occasion for distress or embarrassment . . For so long as the court is in a position to prevent some of that intrusion and distress, depending on individual circumstances, it may be appropriate to maintain that degree of protection. The analogy with King Canute to some extent, therefore, breaks down.’

Eady J
[2011] EWHC 1326 (QB)
Bailii
England and Wales
Citing:
Cited – Cobra Golf Inc and Another v Rata and Others ChD 11-Oct-1996
An Anton Piller order was wrongfully made where it was used in order to get information to found a later prosecution. The privilege against self incrimination is available under Section 14 of the 1968 Act in contempt proceedings despite the fact . .
Cited – Dendron Gmbh and others v Regents of University of California and Another PatC 23-Mar-2004
The claimants sought letters of request to obtain evidence to support applications they wished to make, including onme before the European Patents Office.
Held: The EPO when involved in opposition proceedings was not a domestic court, and . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
See Also – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .

Cited by:
Cited – CTB v News Group Newspapers Ltd and Another (3) QBD 23-May-2011
The defendant applied to be released from an injunction protecting the claimant’s privacy. It said that the claimant’s identity had been revealed on Twitter and now by a member of parliament in parliament.
Held: The application was refused. . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Cited – Hutcheson (Formerly Known As ‘KGM’) v News Group Newspapers Ltd and Others CA 19-Jul-2011
The claimant appealed against the refusal of a privacy order, protecting his identity in his claim.
Held: The appeal was refused. That Article 8 was ‘engaged’ was not conclusive of the question whether the claimant enjoyed a reasonable . .
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .

Lists of cited by and citing cases may be incomplete.

Media, Human Rights, Litigation Practice

Updated: 12 January 2022; Ref: scu.440085

Mosley v News Group Newspapers Ltd: QBD 24 Jul 2008

The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and claimed in breach of confidence.
Held: ‘The law [of confidence] now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence. That is because the law is concerned to prevent the violation of a citizen’s autonomy, dignity and self-esteem. It is not simply a matter of ‘unaccountable’ judges running amok. Parliament enacted the 1998 statute which requires these values to be acknowledged and enforced by the courts.’ The clandestine recording of sexual activity on private property must be taken to engage Article 8. What requires closer examination is the extent to which such intrusive behaviour could be justified by reference to a countervailing public interest.
As to the application for exemplary damages, the extension of such awards to cases involving breach of confidence would no doubt have to be dealt with at the House of Lords. However, there was another factor which ‘probably’ had to be taken into account, namely vindication to mark the infringement of the right.
Eady J considered the criticism of CC v AB in its moral relativism. It was ‘largely because of a failure to appreciate the task which judges are now required to carry out in the context of the rights-based environment introduced by the Human Rights Act, hitherto largely unfamiliar in our common law tradition. In deciding whether a right has been infringed, and in assessing the relative worth of competing rights, it is not for judges to make individual moral judgments or to be swayed by personal distaste. It is not simply a matter of personal privacy versus the public interest. The modern perception is that there is a public interest in respecting personal privacy. It is thus a question of taking account of conflicting public interest considerations and evaluating them according to increasingly well recognised criteria. ‘

Eady J
[2008] EWHC 1777 (QB), [2008] EMLR 20
Bailii
European Convention on Human Rights 8 10
England and Wales
Citing:
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Douglas, Zeta Jones, Northern and Shell Plc v Hello! Limited (No 1) CA 21-Dec-2000
The first two claimants sold exclusive rights to photograph their wedding to the third claimant. A paparrazzi infiltrated the wedding and then sold his unauthorised photographs to the defendants, who now appealed injunctions restraining them from . .
Cited – D v L CA 31-Jul-2003
L and D lived together. Fearing the breakdown of the relationship, L used a voice activated recorder to record their conversations. D sought an order to restrain their publication after elements appeared in national newspapers. The court also . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – Aubry v Editions Vice-Versa Inc 9-Apr-1998
(Supreme Court of Canada) Publication in a magazine of an unauthorised photograph of a 17 year old girl sitting on the steps of a public building had violated her right to respect for private life conferred under Article 5 of the ‘Quebec Charter’ of . .
Cited – Peck v The United Kingdom ECHR 28-Jan-2003
peck_ukECHR2003
The claimant had been filmed by CCTV. He had, after attempting suicide, left home with a knife, been arrested by the police and disarmed, but then sent home without charge. The CCTV film was used on several occasions to advertise the effectiveness . .
Cited – Dudgeon v The United Kingdom ECHR 22-Oct-1981
ECHR (Plenary Court) Legislation in Northern Ireland that criminalised homosexual behaviour which was lawful in the rest of the UK.
Held: There was a violation of article 8, but it was not necessary to . .
Cited – Laskey, Jaggard and Brown v The United Kingdom ECHR 19-Feb-1997
A prosecution for sado-masochist acts was a necessary invasion of privacy to protect health. The Court found no violation where applicants were imprisoned as a result of sado-masochistic activities captured on video tape when police obtained . .
Cited – Fressoz and Roire v France ECHR 21-Jan-1999
Le Canard Enchaine published the salary of M Calvet, the chairman of Peugeot, (which was publicly available information) and also, by way of confirmation, photographs of the relevant part of his tax assessment, which was confidential and could not . .
Cited – Tammer v Estonia ECHR 6-Feb-2001
Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and the self-fulfilment of each individual. Criminal penalties imposed in respect of the reporting of a . .
Cited – PG and JH v The United Kingdom ECHR 25-Sep-2001
The use of covert listening devices within a police station was an infringement of the right to privacy, since there was no system of law regulating such practices. That need not affect the right to a fair trial. The prosecution had a duty to . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Theakston v MGN Ltd QBD 14-Feb-2002
The claimant, a celebrity sought to restrain publication by the defendant of information about his sex life, consisting of pictures of him in a brothel. The court considered the test for the grant of an injunction to restrain publication under the . .
Cited – Craxi (No. 2) ECHR 17-Jul-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 with regard to release of transcripts into the public domain ; Violation of Art. 8 with regard to reading out of transcripts at trial ; Pecuniary . .
Cited – ADT v United Kingdom ECHR 4-Aug-2000
The UK law which had the effect of prohibiting non-violent homosexual acts by groups of males, was a violation of the right to respect for his private life. The law went beyond that which might properly be required in a democratic society for the . .
Cited – Silver v United Kingdom ECHR 1980
(Commission) Complaint was made as to the censorship of prisoners’ correspondence. The censorship of prisoners’ correspondence was ancillary to prison rules restricting the contents of correspondence. The Commission, therefore, and the Court had to . .
Cited – Regina v Brown (Anthony); Regina v Lucas; etc HL 11-Mar-1993
The appellants had been convicted of assault, after having engaged in consensual acts of sado-masochism in which they inflicted varying degreees of physical self harm. They had pleaded guilty after a ruling that the prosecution had not needed to . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – CC v AB QBD 4-Dec-2006
The claimant sought an order to prevent the defendant and others from making it known that the claimant had had an adulterous relationship with the defendant’s wife. . .
Cited – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – Leempoel and SA ED Cine Revue v Belgium ECHR 9-Nov-2006
‘In matters relating to striking a balance between protecting private life and the freedom of expression that the Court had had to rule upon, it has always emphasised . . the requirement that the publication of information, documents or photographs . .
Cited – Francome v Mirror Group Newspapers Ltd CA 1984
The defendant had acquired illegal tapes of telephone conversations which it said implicated the plaintiff. He sought to restrain publication of the material pending forthcoming discliplinary charges at the Jockey Club.
Held: The court had to . .
Cited – Kuddus v Chief Constable of Leicestershire Constabulary HL 7-Jun-2001
There is no rule of law preventing the award of exemplary damages against police officers. The fact that no case of misfeasance in public office had led to such awards before 1964, did not prevent such an award now. Although damages are generally . .
Cited – Kitetechnology v Unicor GmbH Plastmaschinen 1995
It would not be correct to describe a infringement of breach of privacy as a tort. . .
Cited – Z Ltd v A-Z and AA-LL CA 1982
The plaintiffs, an overseas company with an office in London had been defrauded here. They sought and obtained Mareva injunctions against defendants and against six clearing banks. The banks sought clarification of their duties.
Held: The . .
Cited – Maxwell v Pressdram Ltd CA 1987
The court was asked whether disclosure should be ordered in the context of the statutory privilege which was created by s.10 of the 1981 Act. The publisher defendant had deposed that it would justify the material. At trial, however, the defence of . .
Cited – Rowlands v Chief Constable of Merseyside Police CA 20-Dec-2006
The claimant succeeded in her claims for general damages against the respondent for personal injury, false imprisonment and malicious prosecution, but appealed refusal of the court to award aggravated damages against the chief constable.
Held: . .
Cited – Tolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .
Cited – John v MGN Ltd CA 12-Dec-1995
Defamation – Large Damages Awards
MGN appealed as to the level of damages awarded against it namely pounds 350,000 damages, comprising pounds 75,000 compensatory damages and pounds 275,000 exemplary damages. The newspaper contended that as a matter of principle there is no scope in . .
Cited – Jones v Pollard, Mirror Group Newspapers Limited and Bailey CA 12-Dec-1996
Articles in consecutive issues of The Sunday Mirror accused the plaintiff of pimping for the KGB, organising sex with prostitutes for visiting British businessmen and then blackmailing them. The defendants pleaded justification. The plaintiff . .
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – Archer v Williams QBD 3-Jul-2003
The claimant brought an action for breach of confidence against a former employee. . .
Cited – Bonnick v Morris, The Gleaner Company Ltd and Allen PC 17-Jun-2002
(Jamaica) The appellant sought damages from the respondent journalists in defamation. They had claimed qualified privilege. The words alleged to be defamatory were ambiguous.
Held: The publishers were protected by Reynolds privilege. The court . .
See Also – Mosley v News Group Newspapers Ltd QBD 9-Apr-2008
The claimant sought to continue an interim injunction requiring the defendant not to publish a film on its website.
Held: A claimant’s Article 8 rights may be engaged even where the information in question has been previously publicised. . .

Cited by:
Cited – Callaghan v Independent News and Media Ltd QBNI 7-Jan-2009
callaghan_inmQBNI2009
The claimant was convicted in 1987 of a callous sexual murder. He sought an order preventing the defendant newspaper publishing anything to allow his or his family’s identification and delay his release. The defendant acknowledged the need to avoid . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
See Also – Mosley v The United Kingdom ECHR 22-Oct-2009
. .
See Also – Mosley v The United Kingdom ECHR 10-May-2011
The claimant complained of the reporting of a sexual encounter which he said was private.
Held: The reporting of ‘tawdry allegations about an individual’s private life’ does not attract the robust protection under Article 10 afforded to more . .
Cited – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Cited – Ferdinand v MGN Limited QBD 29-Sep-2011
The claimant, a famous footballer, complained that an article by the defendant relating an affair he had had, had infringed his right to privacy. The defendant relied on its right to freedom of expression. The claimant had at an earlier stage, and . .
Cited – Hannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .

Lists of cited by and citing cases may be incomplete.

Defamation, Media, Human Rights, Damages

Leading Case

Updated: 12 January 2022; Ref: scu.271044

Papadakis And Others v Greece (226): ECHR 25 Feb 2016

34083/13 (Judgment (Merits and Just Satisfaction) : Court (First Section)) French Text, [2016] ECHR 226
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – Papadakis And Others v Greece (218) ECHR 25-Feb-2016
ECHR Judgment Merits and Just Satisfaction : Court First Section . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 10 January 2022; Ref: scu.560461

Olivieri And Others v Italy (229): ECHR 25 Feb 2016

17708/12 (Judgment (Merits and Just Satisfaction) : Court (First Section)) French Text, [2016] ECHR 229
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – Olivieri And Others v Italy (221) ECHR 25-Feb-2016
ECHR Judgment Merits and Just Satisfaction : Court First Section . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 10 January 2022; Ref: scu.560460

Domazyan v Armenia 228: ECHR 25 Feb 2016

22558/07 (Judgment (Merits and Just Satisfaction) : Court (First Section)), [2016] ECHR 228
Bailii
European Convention on Human Rights
Human Rights
Cited by:
See Also – Domazyan v Armenia 220 ECHR 25-Feb-2016
ECHR Judgment Merits and Just Satisfaction : Court First Section . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 10 January 2022; Ref: scu.560457

JN v Staatssecretaris Van Veiligheid En Justitie: ECJ 15 Feb 2016

ECJ Reference for a preliminary ruling – Urgent preliminary ruling procedure – Standards for the reception of applicants for international protection – Directive 2008/115/EC – Lawful residence – Directive 2013/32/EU – Article 9 – Right to remain in a Member State – Directive 2013/33/EU – Point (e) of the first subparagraph of Article 8(3) – Detention – Protection of national security or public order – Validity – Charter of Fundamental Rights of the European Union – Articles 6 and 52 – Limitation – Proportionality

ECLI:EU:C:2016:84, [2016] EUECJ C-601/15, [2016] WLR(D) 166, [2016] 1 WLR 3027
Bailii, WLRD
Directive 2013/32/EU 9, Directive 2013/33/EU 8(3)(e), Charter of Fundamental Rights of the European Union 6 52
European

Immigration, Human Rights, Limitation

Updated: 10 January 2022; Ref: scu.559879

L, Regina (On the Application of) v Commissioner of Police of the Metropolis: SC 29 Oct 2009

Rebalancing of Enhanced Disclosure Requirements

The Court was asked as to the practice of supplying enhanced criminal record certificates under the 1997 Act. It was said that the release of reports of suspicions was a disproportionate interference in the claimants article 8 rights to a private life. The enhanced record revealed that the claimant’s son had been placed on the child protection register to protect him not from the claimant but from his father. The claimant lost her job.
Held: Some elements of the information disclosed was not public, and the claimant’s article 8 rights were engaged. The effect of X v West Midlands Police tilted the balance too far in favour of disclosure: ‘It has encouraged the idea that priority must be given to the social need to protect the vulnerable as against the right to respect for private life of the applicant. This is clearly shown by the way the rating table in MP9 is constructed and by Det.Supt. Morris’s minute of 2 December 2004. The words ‘ought to be included’ in section 115(7)(b) require to be given much greater attention. They must be read and given effect in a way that is compatible with the applicant’s Convention right and that of any third party who may be affected by the disclosure: Human Rights Act 1998 Act, section 3(1).’
The advice given to police officers should be changed to re-balance the presumptions made, reflecting better the article 8 rights of the applicants. However a declaration as to incompatibility was refused, and the decision was not quashed, since the information disclosed was true and could properly be taken into an account by an employer. Before disclosing, the officer must consider that the information might be relevant and also that it ought to be disclosed.

Lord Hope, Deputy President, Lord Saville, Lord Scott, Lord Brown, Lord Neuberger
[2009] UKSC 3, [2010] Fam Law 21, [2010] 1 All ER 113, [2009] 3 WLR 1056, [2010] AC 410, [2010] 2 FCR 25, [2010] PTSR 245, 2 CCL Rep 573, [2010] HRLR 7, 28 BHRC 391, [2010] UKHRR 115, (2009) 12 CCL Rep 573, UKSC 2009/0104
Bailii, Bailii Summary, SC, SC Summary
Police Act 1997 115(7), European Convention on Human Rights 8, Rehabilitation of Offenders Act 1974 4(2), Serious Organised Crime and Police Act 2005, Criminal Justice Act 2003
England and Wales
Citing:
Disapproved – Regina (X) v Chief Constable of West Midlands Police CA 30-Jul-2004
The claimant had been accused of offences, but the prosecution had been discontinued when the child victims had failed to identify him. The police had nevertheless notified potential employers and he had been unable to obtain work as a social . .
At First Instance – L, Regina (on the Application of) v Commissioner of Police of the Metropolis Admn 19-Mar-2006
The court considered the duties on the respondent in providing an enhanced criminal record certificate. In one case, the claimant had brought up her son who was made subject to child protection procedures for neglect. Her job involved supervising . .
Cited – L, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 1-Mar-2007
The court considered the proper content of an enhanced criminal record certificate. The claimant said that it should contain only matter relating to actual or potential criminal activity.
Held: As to the meaning of section 115: ‘if Parliament . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health and Another HL 21-Jan-2009
The claimants had been provisionally listed as ‘people considered unsuitable to work with vulnerable adults’ which meant that they could no longer work, but they said they were given no effective and speedy opportunity to object to the listing. . .
Cited – Smart v Sheffield City Council: Central Sunderland Housing Company Limited v Wilson CA 25-Jan-2002
Each tenant had become unintentionally homeless, and was granted a non-secure tenancy of accommodation under section 193. Complaints of nuisance were received from neighbours. Possession orders were obtained and now challenged under the Human Rights . .
Cited – X v Iceland ECHR 18-May-1976
The right to respect for private life was held to ‘comprise also, to a certain degree, the right to establish and develop relationships with other human beings’. . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
Cited – Regina v Chief Constable of North Wales Police and Others Ex Parte Thorpe and Another; Regina v Chief Constable for North Wales Police Area and others ex parte AB and CB CA 18-Mar-1998
Public Identification of Pedophiles by Police
AB and CB had been released from prison after serving sentences for sexual assaults on children. They were thought still to be dangerous. They moved about the country to escape identification, and came to be staying on a campsite. The police sought . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – Sidabras And Dziautas v Lithuania ECHR 27-Jul-2004
Former KGB officers complained that they were banned, not only from public sector employment, but also from many private sector posts. This ‘affected [their] ability to develop relationships with the outside world to a very significant degree, and . .
Cited – Cemalettin Canli v Turkey ECHR 18-Nov-2008
The Court found interference in the applicant’s right to respect of his private life in that the police prepared and submitted to a domestic court an inaccurate report in the context of criminal proceedings against him. . .
Cited – Regina v Local Authority and Police Authority in the Midlands, ex parte LM 2000
The court considered the retention of information about an unsubstantiated child sexual abuse allegation. . .
Cited – Regina (X) v Chief Constable of West Midlands Police QBD 23-Jan-2004
The claimant, a social worker, had been accused of two offences of indecency with children, but the complainants had failed to identify him. The respondent later disclosed those allegations when called upon to provide an enhanced criminal record . .
Cited – Pinnington, Regina (on the Application of) v Chief Constable of Thames Valley Police Admn 31-Jul-2008
The claimant sought judicial review of a decision of the police to include in response to the enhanced criminal record request details of three allegations made but not proceeded with.
Held: By the terms of the statute it is for the chief . .
Cited – Sciacca v Italy ECHR 11-Jan-2005
The court was asked whether the applicant’s rights under Article 8 had been infringed by the release to the press of an identity photograph taken of her by the Italian Revenue Police while she was under arrest and investigation for various criminal . .
Cited – Reklos and Davourlis v Greece ECHR 15-Jan-2009
(Press release) The court considered the rights when photographs were taken in public: ‘the court finds that it is not insignificant that the photographer was able to keep the negatives of the offending photographs, in spite of the express request . .

Cited by:
Cited – BH v Secretary of State for The Home Department Admn 17-Nov-2009
The claimant was subject to a non-derogating control order under the 2005 Act. A relaxation was sought to allow him to visit his solicitors. But was offered subject to conditions which included a requirement that he be subject to a personal search. . .
Cited – Sheikh and Another v Dogan and Others ChD 17-Nov-2009
The judge had reserved his judgment, but had since received further voluminous representations from a party.
Held: None of the matters raised suggested a proper reason for exercising the jurisdiction given by In re Barrell. The claimant was . .
Cited – C, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 19-Jan-2011
The Chief Constable appealed against an order made against him on the disclosure made on replying to an Enhanced Criminal Record Certificate request, of unproven sexual misconduct allegations against the claimant. The judge had found the disclosure . .
Cited – GC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
Binding – T, Regina (on The Application of) v Greater Manchester Police and Another Admn 9-Feb-2012
The claimant challenged the terms of an enhanced Criminal Records Certificate issued by the defendant. He had been warned in 2002 for suspicion of theft of two cycles. The record had been stepped down in 2009, but then re-instated. He wished to . .
Cited – Stratton, Regina (on The Application of) v Thames Valley Police Admn 7-Jun-2013
The claimant requested the court to set aside a caution accepted by her, when she said that she had not understood the serious consequences and had not admitted the offence.
Held: It was for each Chief Constable to draft his own policy, but . .
Cited – Catt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Each appellant complained of the disclosure by the respondent of very old and minor offences to potential employers, destroying prospects of finding work. Two statutory schemes were challenged, raising two separate questions, namely whether any . .

Lists of cited by and citing cases may be incomplete.

Police, Information, Human Rights

Leading Case

Updated: 09 January 2022; Ref: scu.377319

F and Another, Regina (on The Application of) v Secretary of State for The Home Department: SC 21 Apr 2010

The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the absence of a review was incompatible with their article 8 rights.
Held: The appeal failed. It was a question of proportionality. The requirements to notify addresses and report were infringements of the respondents’ article 8 rights. The court asked, to what extent it was an infringement, how vauable was the regime in the pursuit of a legitimate aim, and whether the success of the arrangement was dependent on the absence of a review system.
Where, given an opportunity, a defendant could satisfy the authorities that there was no need for a continued registration, there was no purpose served by a continued registration, and its associated infringements. There were already systems in place and relied on for the review of sex offenders, and therefore a system of review was practicable.
Lord Phillips said: ‘it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high threshold for review. Registration systems for sexual offenders are not uncommon in other jurisdictions. Those acting for the first respondent have drawn attention to registration requirements for sexual offenders in France, Ireland, the seven Australian States, Canada, South Africa and the United States. Almost all of these have provisions for review. This does not suggest that the review exercise is not practicable.’

Lord Phillips (President), Lord Hope (Deputy President), Lord Rodger, Lady Hale, Lord Clarke
[2010] WLR (D) 98, [2010] UKSC 17, [2010] 2 WLR 992, [2011] 1 AC 331, [2010] 2 All ER 707, (2010) 113 BMLR 209, 113 BMLR 209
SC, SC Summ, Bailii, WLRD
Sexual Offences Act 2003 82, European Convention on Human Rughts 8
England and Wales
Citing:
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Appeal From – JF and Another, Regina (On the Application of) v Secretary of State for the Home Department CA 23-Jul-2009
The claimants complained of the system under which they had been placed on the sex offenders’ register indefinitely with no ability to have the registration reviewed. They said that this interfered with their right to respect for their private and . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
At first Instance – F and Another, Regina (on the Application of) v Secretary of State for the Home Department QBD 19-Dec-2008
The defendants each complained that being placed on the sex offenders’ register indefinitely was a disproportionate interference with their rights for private and family life, and under European law.
Held: A declaration of incompatibility was . .
Cited – Stubbings and Others v The United Kingdom ECHR 22-Oct-1996
There was no human rights breach where the victims of sex abuse had been refused a right to sue for damages out of time. The question is whether and to what extent differences in otherwise similar situations justify a different treatment in law: . .
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 – Bouchacourt v France ECHR 17-Dec-2009
The applicant had been sentenced to ten years’ imprisonment for rape and sexual assault on minors. His name had been placed automatically on a Register of Sexual and Violent Offenders, and had had to confirm his address every year and to give notice . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – Adamson v The United Kingdom ECHR 26-Jan-1999
The Court reached the following conclusion as to the purpose of the notification requirements for sex offenders: ‘the purpose of the measures in question is to contribute towards a lower rate of reoffending in sex offenders, since a person’s . .
Cited – Massey v United Kingdom ECHR 8-Apr-2003
The applicant complained that there was no ‘assessment or review’ of the necessity for his sex offender registration. . .
Cited – Gallagher, Re an Application By for Judicial Review QBNI 9-Apr-2003
The applicant had been convicted of offences of indecent assault. He contended that the notification requirements of the 1997 Act infringed his rights under Article 8.
Held: The court rejected the claim: ‘The task of deciding whether the . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – A v The Scottish Ministers and Others, Re Application for Judicial Review SCS 27-Nov-2007
. .
Cited – Forbes v Secretary of State for the Home Department CA 11-Jul-2006
The defendant had been placed on the sex offenders’ register on conviction for fraudulent evasion of prohibitions on importing goods, by importing indecent photographs of children. He had maintained that he had not known of the exact nature of the . .

Cited by:
Cited – T, Regina (on The Application of) v Greater Manchester Police and Another Admn 9-Feb-2012
The claimant challenged the terms of an enhanced Criminal Records Certificate issued by the defendant. He had been warned in 2002 for suspicion of theft of two cycles. The record had been stepped down in 2009, but then re-instated. He wished to . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Each appellant complained of the disclosure by the respondent of very old and minor offences to potential employers, destroying prospects of finding work. Two statutory schemes were challenged, raising two separate questions, namely whether any . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 09 January 2022; Ref: scu.409977

Kopp v Switzerland: ECHR 25 Mar 1998

WCHR Switzerland – monitoring of a law firm’s telephone lines on orders of the Federal Public Prosecutor (sections 66(1 bis) and 77 of the Federal Criminal Procedure Act – ‘the FCPA’)
A lawyer’s home telephone was tapped in an investigation of whether his wife was disclosing confidential information from the Department of Justice where she worked (she was subsequently acquitted).
Held: His claim was refused. Although the monitoring of his telephone lines had seriously perturbed his relations with his family and the members of his firm, it had not had a serious impact. They described the breach of Article 8 as meaning simply that the applicant ‘did not enjoy the minimum degree of protection required by the rule of law in a democratic society’ and without giving more reasoning stated the ‘the finding of a violation of Article 8 constitutes sufficient compensation’.

[1998] HRCD 356, 23224/94, [1998] 27 EHHR 93, [1998] ECHR 18, (1999) 27 EHRR 91, [1989] ECHR 10842/84
Worldlii, Bailii
European Convention on Human Rights 8
Human Rights
Cited by:
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Each appellant complained of the disclosure by the respondent of very old and minor offences to potential employers, destroying prospects of finding work. Two statutory schemes were challenged, raising two separate questions, namely whether any . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 09 January 2022; Ref: scu.165593

Couderc And Hachette Filipacchi Associes v France: ECHR 10 Nov 2015

The Court said: ‘The Court has also emphasised on numerous occasions that, although the public has a right to be informed, and this is an essential right in a democratic society which, in certain special circumstances, can even extend to aspects of the private life of public figures, articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well-known that person might be, cannot be deemed to contribute to any debate of general interest to society (see Von Hannover, cited above, para 65; MGN Ltd v United Kingdom, no 39401/04, [2011] ECHR 66, para 143, 18 January 2011; and Alkaya v Turkey, no. 42811/06, [2012] ECHR 1790, para 35, 9 October 2012).
Thus, an article about the alleged extra-marital relationships of high-profile public figures who were senior State officials contributed only to the propagation of rumours, serving merely to satisfy the curiosity of a certain readership (see Standard Verlags GmbH v Austria (No 2), no 21277/05, [2009] ECHR 853, para 52, 4 June 2009). Equally, the publication of photographs showing scenes from the daily life of a princess who exercised no official functions was aimed merely at satisfying the curiosity of a particular readership (see Von Hannover, cited above, para 65, with further references). The Court reiterates in this connection that the public interest cannot be reduced to the public’s thirst for information about the private life of others, or to the reader’s wish for sensationalism or even voyeurism.’

40454/07 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber)), [2015] ECHR 992
Bailii
European Convention on Human Rights
Citing:
Cited – Couderc And Hachette Filipacchi Associes v France ECHR 12-Jun-2014
. .

Cited by:
Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Updated: 06 January 2022; Ref: scu.554619

Mott, Regina (on The Application of) v Environment Agency: SC 14 Feb 2018

The Court considered the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency restricting certain forms of salmon-fishing in the Severn Estuary. The claimant operated a licensed putcher rank salmon fishing business.
Held: The Agency’s appeal failed. The judge’s reasoning was correct. He had not find it necessary to categorise the measure as either expropriation or control. It was enough that it ‘eliminated at least 95% of the benefit of the right’, thus making it ‘closer to deprivation than mere control’. This was clearly relevant to the ‘fair balance’. Yet the Agency had given no consideration to the particular impact on his livelihood. The impact was exacerbated because the method chosen meant that by far the greatest impact fell on him, as compared to others whose use may have been only for leisure purposes.

Lady Hale, President, Lord Kerr, Lord Carnwath, Lady Black, Lord Briggs
[2018] UKSC 10, [2018] 2 All ER 663, [2018] LLR 356, [2018] 1 WLR 1022, [2018] Env LR 20, [2018] WLR(D) 86, UKSC 2016/0148
Bailii, Bailii Summray, WLRD, SC, SC Summary, SC Summary Video, SC 20171213 am Video, SC 2017 pm Video
European Convention on Human Rights A1P1, Salmon and Freshwater Fisheries Act 1975, Marine and Coastal Access Act 2009, Human Rights Act 1998
England and Wales
Citing:
At first Instance – Mott, Regina (on The Application of) v The Environment Agency and Another Admn 13-Feb-2015
The claimant challenged new conditions imposed on licences to operate his salmon fishery in the Severn Estuary, which operated to defeat his tenancy of the fishery.
Held: The request for review succeeded. The decisions to impose the catch . .
Cited – Mott, Regina (on The Application of) v Environment Agency and Another CA 17-Jun-2016
The applicant challenged restrictions on salmon fishing imposed by the respondent. At first instance they were held to be irrational, and the Agency appealed.
Held: The Regulations were not irrational and that element of the appeal succeeded, . .
Cited – Back v Finland ECHR 20-Jul-2004
The claimant was the owner of a substantial debt owed by another individual. However the value of his debt was reduced to a very small level when the debtor entered a statutory scheme for compromise of debts.
Held: It must be open to a . .
Cited – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – Trailer and Marina (Leven) Ltd, Regina (ex parte) v Secretary of State for the Environment, Food and Rural Affairs and Another CA 15-Dec-2004
The claimant sought a declaration that the 1981 Act, as amended, interfered with the peaceful enjoyment of its possession, namely a stretch of canal which had been declared a Site of Special Scientific Interest, with the effect that it was unusable. . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Mellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
Cited – Papamichalopoulos and Others v Greece ECHR 24-Jun-1993
Expropriation notices, which were eventually withdrawn, constituted neither deprivation of property nor control of use, but ‘The fact that the permits fell within the ambit of neither of the second sentence of the first paragraph nor of the second . .
Cited – Posti and Rahko v Finland ECHR 24-Sep-2002
Hudoc Two fishermen who operated under leases granted by the Finnish state complained that restrictions imposed by the government to safeguard fish stocks had failed to strike a fair balance under A1P1. The court . .
Cited – Hutten-Czapska v Poland ECHR 19-Jun-2006
Grand Chamber. The court considered the need for establishing a fair balance in cases under A1P1: ‘Not only must an interference with the right of property pursue, on the facts as well as in principle, a ‘legitimate aim’ in the ‘general interest’, . .
Cited – Re B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .
Cited – Pindstrup Mosebrug A/S v Denmark ECHR 3-Jun-2008
Restrictions had been imposed on the commercial exploitation of a peat bog, regarded as geologically and biologically unique.
Held: The claim was inadmissible. The effect on the claimants was not unduly severe, having regard to the findings . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Agriculture

Updated: 05 January 2022; Ref: scu.604791

Kiarie, Regina (on The Application of) v The Secretary of State for The Home Department: CA 13 Oct 2015

The claimants challenged the rules disallowing their appeal against a decision for their expulsion as unconducive to the public good, unless made ‘out of country’, saying that this infringed their human rights to private and family life.
Held: The appeals succeeded. Each had served terms of imprisonment for drugs related offences.

Richards, Elias, McCombee LJJ
[2015] EWCA Civ 1020, [2016] 3 All ER 741, [2016] Imm AR 209, [2015] WLR(D) 410, [2016] 1 WLR 1961, [2016] INLR 212
Bailii, WLRD
Nationality, Immigration and Asylum Act 2002, European Convention on Human Rights 6
England and Wales
Citing:
Leave – Byndloss, Regina (on The Application of) v The Secretary of State for The Home Department CA 23-Jun-2015
Permission to appeal – certificate as to need for out of country appeals . .

Cited by:
Appeal from – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 04 January 2022; Ref: scu.553289

Delvigne v Commune de Lesparre-Medoc: ECJ 6 Oct 2015

ECJ Judgment – Reference for a preliminary ruling – Charter of Fundamental Rights of the European Union – Articles 39 and 49 – European Parliament – Elections – Right to vote – Citizenship of the European Union – Retroactive effect of the more lenient criminal law – National legislation providing for the deprivation of the right to vote in the case of a criminal conviction by a final judgment delivered before 1 March 1994

[2016] CEC 599, [2015] EUECJ C-650/13, [2015] WLR(D) 402, ECLI:EU:C:2015:648, [2016] 2 CMLR 1, [2016] 1 WLR 1223
Bailii, WLRD
Charter of Fundamental Rights of the European Union
European

Human Rights, Elections, Human Rights

Updated: 04 January 2022; Ref: scu.553094

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

The Claimant challenges assessments made under the Overseas Security and Justice Assistance Human Rights Guidance in relation to the provision of assistance and training offered to the Sudanese Armed Forces under the ‘Defence Engagement Sudan’ programme.

Simon J
[2015] EWHC 2695 (Admin)
Bailii

Armed Forces, Human Rights

Updated: 04 January 2022; Ref: scu.552786

Nicklinson and Lamb v The United Kingdom: ECHR 23 Jun 2015

ECHR Article 8-1
Respect for private life
Ban on assisted suicide and voluntary euthanasia: inadmissible
Facts – The first applicant is the wife of Tony Nicklinson, now deceased, who suffered locked-in syndrome following a stroke. The second applicant was paralysed following a car accident. His condition is irreversible. Both men wish/ed to end their lives but are/were unable to commit suicide without assistance. They unsuccessfully challenged the statutory ban on assisted suicide and the law on murder, which did not recognise voluntary euthanasia as a defence, before the domestic courts. The Supreme Court found, in particular, that such a sensitive issue was for Parliament to resolve.
Law – Article 8
(a) First applicant: In order for the right to respect for private life to be properly secured at domestic level, individuals had to be able to seek to rely on arguments derived from Article 8 in domestic proceedings and to have those arguments considered and, where appropriate, taken into account in the rulings of the domestic courts. The Court’s more recent case-law had often tended to view this ancillary aspect of private-life protection as arising under the so-called procedural aspect of Article 8 itself (see, for example, Koch v. Germany, 497/09, 19 July 2012, Information Note 154; and McCann v. the United Kingdom, 19009/04, 13 May 2008, Information Note 108).
It was well established in the Court’s case-law that Article 13 does not go so far as to guarantee a remedy allowing primary legislation to be challenged before a national authority on the ground of being contrary to the Convention. Where, as here, the case concerned a challenge to primary legislation, rather than, as in Koch and McCann, an individual measure of implementation, it would therefore be anomalous if the procedural aspect of Article 8 extended further than Article 13 so as to require the possibility of challenging primary legislation in cases giving rise to private-life concerns.
However, the Convention was part of the domestic law of the United Kingdom and a procedure existed, under the Human Rights Act, permitting primary legislation to be challenged on the basis of its alleged incompatibility with Article 8. It could therefore be argued that where the State had chosen to provide a remedy in respect of primary legislation, such remedy was subject to the procedural requirements which generally arose under Article 8, and in particular to the requirement set out in Koch as to the need for an examination of the merits of the claim. For the Court, however, there was a fundamental problem with extending the procedural protections of Article 8 in that way. The problem arose from the application of the margin of appreciation available to member States in cases concerning challenges to primary legislation under Article 8. The Contracting States were generally free to determine which of the three branches of government should be responsible for taking policy and legislative decisions which fell within their margin of appreciation and it was not for the European Court to involve itself in their internal constitutional arrangements. However, when it concluded in any given case that an impugned legislative provision fell within the margin of appreciation, it would often be the case that the Court was, essentially, referring to Parliament’s discretion to legislate as it saw fit in that particular area. Thus, in Pretty v. the United Kingdom (2346/02, 29 April 2002) the Court had held that it was for States to assess the risk and likely incidence of abuse if the general prohibition on assisted suicide were to be relaxed or exceptions created. In the context of the United Kingdom, that assessment had been made by Parliament in enacting the relevant provision of the 1961 Suicide Act, a provision that had been reconsidered several times by Parliament in recent years, having been re-enacted in 2009. If the domestic courts were to be required to give a judgment on the merits of such a complaint this could have the effect of forcing upon them an institutional role not envisaged by the domestic constitutional order. Further, it would be odd to deny domestic courts charged with examining the compatibility of primary legislation with the Convention the possibility of concluding, like the Court, that Parliament was best placed to take a decision on the issue in question in light of the sensitive issues, notably ethical, philosophical and social, which arose. For those reasons, the Court did not consider it appropriate to extend Article 8 so as to impose on the Contracting States a procedural obligation to make available a remedy requiring the courts to decide on the merits of a claim such as the one made in the instant case.
In any event, the majority of the Supreme Court judges had dealt with the substance of the first applicant’s claim. They had concluded that she had failed to show that developments since Pretty meant that the ban could no longer be considered a proportionate interference with Article 8 rights. The fact that in making their assessment they had attached great significance to the views of Parliament did not mean that they had failed to carry out any balancing exercise. Rather, they had chosen – as they were entitled to do in light of the sensitive issue at stake and the absence of any consensus among Contracting States – to conclude that the views of Parliament weighed heavily in the balance.
Conclusion: inadmissible (manifestly ill-founded).
(b) Second applicant: Before the Court of Appeal, challenges had been made to both the prohibition on assisted suicide and the law on murder, which made no exception for voluntary euthanasia. However, before the Supreme Court the second applicant had only pursued his complaint about the ban on assisted suicide and not his argument that there should be a judicial procedure to authorise voluntary euthanasia in certain circumstances. It could not be assumed that the Supreme Court would have disposed of the argument concerning voluntary euthanasia in the same way as it disposed of the claim in respect of the prohibition of assisted suicide.
Conclusion: inadmissible (failure to exhaust domestic remedies).

2478/15; 1787/15 – Legal Summary, [2015] ECHR 783
Bailii
European Convention on Human Rights 8-1
Human Rights
Citing:
At HL – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .

Cited by:
See Also – Nicklinson and Lamb v United Kingdom ECHR 16-Jul-2015
The applicants, suffering life threatening and severely disabling conditions, complained of laws which would allow the criminal prosecutions of those assisting them to end their lives. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health, Crime

Updated: 04 January 2022; Ref: scu.552391

The Christian Institute, Family Education Trust and similar, Mcintosh and Thomas v The Scottish Minister: SCS 3 Sep 2015

(Second Division, Inner House) The petitioning charities challenged the validity of the 2014 Act saying that it was an unwarranted intrusion on the private lives of families in Scotland.

Lord Carloway, the Lord Chief Justice Clerk
2015 Fam LR 121, [2015] ScotCS CSIH – 64, [2015] CSIH 64, 2015 GWD 29-484, 2016 SC 47, 2015 SLT 633
Bailii
Children and Young People (Scotland) Act 2014
Scotland
Citing:
Appeal from – In The Petition of The Christian Institute and Others for Judicial Review of The Children and Young People (Scotland) Act 2014 SCS 22-Jan-2015
The claimants challenged the 2014 Act saying that in appointing a nominated professional individual for every child, the human rights of the family had been disproportionately interfered with. . .

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

Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 04 January 2022; Ref: scu.552306

Trailer and Marina (Leven) Ltd, Regina (ex parte) v Secretary of State for the Environment, Food and Rural Affairs and Another: CA 15 Dec 2004

The claimant sought a declaration that the 1981 Act, as amended, interfered with the peaceful enjoyment of its possession, namely a stretch of canal which had been declared a Site of Special Scientific Interest, with the effect that it was unusable. It had come to be a habitat for wildlife, and the order prevented the claimant using the canal for leisure purposes.
Held: Where the interference was short of an expropriation, but was a substantial interference in the use of property, the court had to find a fair balance between private rights and the public interest. The court had to give appropriate deference to the decisions of the legislature. Provided the legislature thought it right to interfere with use right without compensation, a fair balance would have been struck. The Act had been amended to take away compensation rights. The Act was not inherently incompatible with property rights. It did not prevent all use and was not a disguised expropriation.

Lord Phillips Of Worth Matravers MR, Lord Justice Sedley and Lord Justice Neuberger
[2004] EWCA Civ 1580, Times 28-Dec-2004
Bailii
Wildlife and Countryside Act 1981, European Convention on Human Rights A1P1
England and Wales
Citing:
Appeal from – Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
Cited – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Papamichalopoulos and Others v Greece ECHR 24-Jun-1993
Expropriation notices, which were eventually withdrawn, constituted neither deprivation of property nor control of use, but ‘The fact that the permits fell within the ambit of neither of the second sentence of the first paragraph nor of the second . .
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 . .
Cited – Allan Jacobsson v Sweden ECHR 25-Oct-1989
‘According to the Court’s case law, this provision comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property; the . .
Cited – Southern Water Authority v Nature Conservancy Council HL 9-Sep-1992
That a Water Authority was digging a ditch was not a sufficient connection with the land to make them occupiers and capable of committing an offence as occupiers. The statutory provisions were toothless for ‘it needs only a moment to see that this . .
Cited – Baner v Sweden ECHR 1989
The applicant owned land with lakes which were fished by his household and employees; the public were not allowed to fish. New legislation permitted licence-free fishing by everyone. Many more people came to the beaches and fished the lakes; there . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Mellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
Cited – S v France ECHR 1990
The Commission, dealing with admissibility, pointed out that noise nuisance could be so severe as to amount to a partial expropriation where it rendered a property unsaleable or unusable, severely affecting its value. Where substantial compensation . .

Cited by:
Cited – Mott, Regina (on The Application of) v The Environment Agency and Another Admn 13-Feb-2015
The claimant challenged new conditions imposed on licences to operate his salmon fishery in the Severn Estuary, which operated to defeat his tenancy of the fishery.
Held: The request for review succeeded. The decisions to impose the catch . .
Cited – Mott, Regina (on The Application of) v Environment Agency and Another CA 17-Jun-2016
The applicant challenged restrictions on salmon fishing imposed by the respondent. At first instance they were held to be irrational, and the Agency appealed.
Held: The Regulations were not irrational and that element of the appeal succeeded, . .
Cited – Mott, Regina (on The Application of) v Environment Agency SC 14-Feb-2018
The Court considered the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency restricting certain forms of salmon-fishing in the Severn Estuary. The claimant operated a licensed putcher . .

Lists of cited by and citing cases may be incomplete.

Land, Human Rights

Updated: 04 January 2022; Ref: scu.220353

Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature: QBD 6 Feb 2004

The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human rights.
Held: The procedures did allow some development subject to controls. It was not right to view environmental protections as of lesser importance than other social values: ‘nature conservation interests and SSSIs are an important aspect of what can be seen as social policy.’ The legislation and arrangemnts for compensation were compliant.

The Honourable Mr Justice Ouseley
[2004] EWHC 153 (Admin), Times 19-Feb-2004
Bailii
Wildlife and Countryside Act 1981 29 30 31 32
England and Wales
Citing:
Cited – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – Fisher and Another v English Nature Admn 4-Jul-2003
The claimants were trustees of land. The Respondent had notified the Secretary of State that they considered that part of the land satisfied the criteria to be certifed as being of special scientific interest. They now intended to confirm the . .
Cited – Allan Jacobsson v Sweden ECHR 25-Oct-1989
‘According to the Court’s case law, this provision comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property; the . .
Cited – Oerlemans v The Netherlands ECHR 27-Nov-1991
Land was designated as ‘a protected natural site’, the effect of which was that agricultural activities could continue but that if the owner wished to alter or intensify the use of the land or to make certain changes in agricultural practices, . .
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 . .
Cited – Secretary of State for the Home Department v International Transport Roth Gmbh and others CA 22-Feb-2002
The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The . .
Cited – Baner v Sweden ECHR 1989
The applicant owned land with lakes which were fished by his household and employees; the public were not allowed to fish. New legislation permitted licence-free fishing by everyone. Many more people came to the beaches and fished the lakes; there . .
Cited – Tre Traktorer Aktiebolag v Sweden ECHR 7-Jul-1989
An alcohol licence for a restaurant was withdrawn with immediate effect because of financial irregularities, with the result that the restaurant business collapsed.
Held: ‘The government argued that a licence to sell alcoholic beverages could . .
Cited – S v France ECHR 1990
The Commission, dealing with admissibility, pointed out that noise nuisance could be so severe as to amount to a partial expropriation where it rendered a property unsaleable or unusable, severely affecting its value. Where substantial compensation . .
Cited – Fredin v Sweden ECHR 18-Feb-1991
A gravel pit licence was revoked without compensation pursuant to legislation brought in after the owner had acquired the pit but before it had begun to exploit it. The actual revocation took place after the pit had been exploited for a number of . .
Cited – Chassagnou and Others v France ECHR 29-Apr-1999
A law permitted local authorities to oblige landowners to transfer hunting rights over private land to approved hunting associations. The landowners could not prevent hunting on their property. Landowners so affected were made members automatically . .

Cited by:
Appeal from – Trailer and Marina (Leven) Ltd, Regina (ex parte) v Secretary of State for the Environment, Food and Rural Affairs and Another CA 15-Dec-2004
The claimant sought a declaration that the 1981 Act, as amended, interfered with the peaceful enjoyment of its possession, namely a stretch of canal which had been declared a Site of Special Scientific Interest, with the effect that it was unusable. . .

Lists of cited by and citing cases may be incomplete.

Land, Human Rights

Updated: 04 January 2022; Ref: scu.192663

Oliari And Others v Italy (LS): ECHR 21 Jul 2015

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Lack of legal recognition of same-sex partnerships: violation
Facts – The applicants are three couples living in stable same-sex relationships who were not allowed to publish marriage banns because the Italian Civil Code provided that the spouses had to be of the opposite sex. Following an appeal by the first couple, the appeal court made a referral to the Constitutional Court regarding the constitutionality of the relevant legislation. In April 2010 the Constitutional Court declared the applicants’ constitutional challenge inadmissible, after finding that the right to marriage, as guaranteed by the Italian Constitution, did not extend to homosexual unions and was intended to refer to marriage in its traditional sense. At the same time, that Constitutional Court pointed out that it was for the Parliament to regulate, in time and by the means and limits set by law, the juridical recognition of the rights and duties pertaining to same-sex couples. The appeal was consequently dismissed.
Law – Article 8: The Court had already held in previous cases that relationships of cohabitating same-sex couples living in stable de facto partnerships fell within the notion of ‘family life’ within the meaning of Article 8. It also acknowledged that same-sex couples were in need of legal recognition and protection of their relationship, as both the Parliamentary Assembly and the Committee of Ministers of the Council of Europe had further underlined.
The Court considered that the legal protection currently available in Italy to same-sex couples failed to provide for the core needs relevant to a couple in a stable committed relationship. Whereas registration of same-sex unions with the local authorities was possible in about 2% of municipalities, this had a merely symbolic value and did not confer any rights on same-sex couples. Since December 2013 same-sex couples had had the possibility of entering into ‘cohabitation agreements’, which were however rather limited in scope. They failed to provide for some basic needs fundamental to the regulation of a stable relationship between a couple, such as mutual material support, maintenance obligations and inheritance rights. Moreover, such agreements were open to any cohabiting persons which meant that they did not primarily aim to protect couples. Furthermore, they required the couple concerned to be cohabiting, whereas the Court had already accepted that cohabitation was not a prerequisite for the existence of a stable union between partners given that many couples – whether married or in a registered partnership – experienced periods during which they conducted their relationship at long distance, for example for professional reasons.
Hence there existed a conflict between the social realities of the applicants living openly as couples, and their inability in law to be granted any official recognition of their relationship. The Court did not consider it particularly burdensome for Italy to provide for the recognition and protection of same-sex unions and considered that a form of civil union or registered partnership would allow them to have the relationship legally recognised which would be of intrinsic value for the persons involved.
The Court further noted a trend among Council of Europe member States towards legal recognition of same-sex couples, with 24 of the 47 member States having legislated in favour of such recognition. Moreover, the Italian Constitutional Court had pointed out the need for legislation to recognise and protect same-sex relationships, but the Italian legislature had for a long time failed to take this into account thus potentially undermining the authority of the judiciary and leaving the individuals concerned in a situation of legal uncertainty. Such calls by the Italian courts reflected the sentiments of a majority of the Italian population who, according to recent surveys, supported legal recognition of homosexual couples. The Italian Government had not denied the need for legal protection of such couples and had failed to point to any community interests justifying the current situation.
In view of the foregoing, the Court found that Italy had failed to fulfil its obligation to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their union. To find otherwise, the Court would have had to be unwilling to take note of the changing conditions in Italy and reluctant to apply the Convention in a way which was practical and effective.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 each in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

18766/11 and 36030/11 – Legal Summary, [2015] ECHR 752
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Oliari And Others v Italy ECHR 21-Jul-2015
The claimants complained of the ban in Italy on the recognition of same sex relationships. Despite several rulings of the Italian Constitutional Court that they had a constitutional right to have their relationships recognised by the law, the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination, Family

Updated: 03 January 2022; Ref: scu.552055

Oliari And Others v Italy: ECHR 21 Jul 2015

The claimants complained of the ban in Italy on the recognition of same sex relationships. Despite several rulings of the Italian Constitutional Court that they had a constitutional right to have their relationships recognised by the law, the Italian state had failed over some thirty years to provide a legal means for them to obtain this recognition.
Held: Italy had failed to fulfil its obligation to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their union. To find otherwise, the Court would have had to be unwilling to take note of the changing conditions in Italy and reluctant to apply the Convention in a way which was practical and effective.
For the purposes of a complaint under Article 14 taken with Article 8, the applicants did not need to show that the action of the state violated their rights under Article 8, but only that their complaint fell within the ‘ambit’ or scope of Article 8: ‘As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter’

18766/11 36030/11 – Chamber Judgment, [2015] ECHR 716
Bailii
European Convention on Human Rights 8 14
Human Rights
Citing:
Legal Summary – Oliari And Others v Italy (LS) ECHR 21-Jul-2015
ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Lack of legal recognition of same-sex partnerships: violation
Facts – The . .

Cited by:
Cited – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Discrimination

Updated: 03 January 2022; Ref: scu.550729

D, Regina (on The Application of) v Secretary of State for The Home Department: Admn 9 Jul 2010

Application for judicial review of a decision by the Secretary of State to certify as clearly unfounded the claimant’s claim that his deportation to Jamaica would infringe his rights under Articles 3 and 8 of the European Convention on Human Rights.

Nicol J
[2010] EWHC 2110 (Admin)
Bailii
England and Wales

Immigration, Human Rights

Updated: 03 January 2022; Ref: scu.550655

Silver And Others v The United Kingdom: ECHR 25 Mar 1983

There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were restrictive.
Held: ‘it is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage.’ Restrictions were however justifiable so long as the law was sufficiently precise to enable the individual to regulate his conduct, and that orders and instructions could be properly taken into account. ‘ and ‘a law which confers a discretion must indicate the scope of that discretion.’ though ‘the Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity . . [T]he Court points out once more that ‘many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.’ As to the rule prohibiting ‘letters which discuss crime in general or the crime of others’: ‘The Commission considers that this restriction is also an obvious requirement of imprisonment and although it is not specified in the Prison Rules 1964, as amended, the Commission is of the opinion that it is a reasonable and foreseeable consequence of the Home Secretary’s power under rule 33(1) of the Prison Rules 1964 to impose restrictions on prisoners’ correspondence in the interests of good order, the prevention of crime or the interests of any persons. Prison security is, in the Commission’s opinion, an essential part of such interest. The prohibition on prisoners’ letters which discuss crime in general or the crime of others can, accordingly, be said to be ‘in accordance with the law’ within the meaning of Article 8(2). . . . On the justification issue, the Commission considers that a prohibition on prisoners’ letters which discuss crime in general or the crime of others is, in principle, an ordinary and reasonable requirement of imprisonment, ‘necessary in a democratic society . . for the prevention of disorder or crime’ within the meaning of Article 8(2).’
ECHR The court addressed the question of safeguards: ‘The applicants further contended that the law itself must provide safeguards against abuse. The Government recognised that the correspondence control system must itself be subject to control and the court finds it evident that some form of safeguards must exist. One of the principles underlying the Convention is the rule of law, which implies that an interference by the authorities with an individual’s rights should be subject to effective control. This is especially so where, as in the present case, the law bestows on the executive wide discretionary powers, the application whereof is a matter of practice which is susceptible to modification but not to any Parliamentary scrutiny.’

6205/73, [1983] 5 EHRR 347, [1983] ECHR 5, 7052/75, 5947/72
Worldlii, Bailii
European Convention on Human Rights 6-1 8 13, European Convention on Human Rights
Human Rights
Citing:
At Commission – Silver v United Kingdom ECHR 1980
(Commission) Complaint was made as to the censorship of prisoners’ correspondence. The censorship of prisoners’ correspondence was ancillary to prison rules restricting the contents of correspondence. The Commission, therefore, and the Court had to . .

Cited by:
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – Szuluk, Regina (on the Application of) v HM Prison Full Sutton Admn 20-Feb-2004
The prisoner was receiving long term health treatment, and objected that his correspondence with the doctor was being read. He was held as a category B prisoner but in a prison also holding category A prisoners, whose mail would be read. The prison . .
Cited – Begum, Regina (on the Application of) v Denbigh High School Admn 15-Jun-2004
A schoolgirl complained that she had been excluded from school for wearing a form of attire which accorded with her Muslim beliefs.
Held: The school had made great efforts to establish what forms of wear were acceptable within the moslem . .
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 – Nilsen v HM Prison Full Sutton and Another CA 17-Nov-2004
The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights. . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Hirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
See Also – Silver And Others v The United Kingdom (Art 50) ECHR 24-Oct-1983
. .
Cited – The Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Cited – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Disclosure of older minor offences to employers 48 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Damages, Prisons

Leading Case

Updated: 02 January 2022; Ref: scu.164917

S v B and Y (A Minor): FD 4 May 2005

The English mother and a New Zealander returned to New Zealand with her son, and their own daughter was born there. The mother and children returned to England for a holiday but when the son said he did not wish to return, the mother decided to stay here. The father sought the return of his daughter to New Zealand under the Hague Convention.
Held: The daughter was to be returned to New Zealand. Other family interests could not be subordinated to the family interest for which protection was sought under the Convention. The daughter clearly had art 8 rights to a family life, and an order for her return would infringe her human right to a family life with her mother. It was important in these cases for the parties to have their respective interests separately represented.

Sir Mark Potter
Times 17-May-2005, [2005] EWHC 733 (Fam)
Bailii
European Convention on Human Rights 88, Hague Convention on the Civil Aspects of International Child Abduction 1980
England and Wales

Children, Human Rights

Updated: 02 January 2022; Ref: scu.224918

Malone v The United Kingdom: ECHR 2 Aug 1984

COURT (PLENARY) The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in ‘accordance with law’. The taps were based on a non-binding and unpublished directive from the Home Secretary to the Director-General of the Security Service. The directive did not have the force of the law, nor did its contents constitute legally enforceable rules governing the operation of the Security Service.
Held: The interception pursuant to such a warrant was an ‘interference by a public authority’ with the right to a private life. English law did not meet the requirement that any interference must be ‘in accordance with the law’. The law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference. English law does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking. ‘The Court would reiterate its opinion that the phrase ‘in accordance with the law’ does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law. . .’

Mr G Wiarda, President,
8691/79, (1984) 7 EHRR 14, [1984] ECHR 10, [1985] ECHR 5
Worldlii, Bailii
European Convention on Human Rights 8.1
Human Rights
Citing:
Appeal from – Malone v Commissioner of the Police for the Metropolis (No 2) ChD 28-Feb-1979
The court considered the lawfulness of telephone tapping. The issue arose following a trial in which the prosecution had admitted the interception of the plaintiff’s telephone conversations under a warrant issued by the Secretary of State. The . .

Cited by:
Cited – W, Regina v (Attorney General’s reference no 5 of 2002) CACD 12-Jun-2003
Three serving police officers provided confidential information to a known criminal. The Chief Constable authorised interception of telephones at a police station, a private network. The court accepted that section 17 prevented the defence asserting . .
Cited – Hewitt and Harman v United Kingdom ECHR 1991
(Commission) When asking whether an action about which complaint is made is ‘according to law’, it is the quality of the law that matters rather than the form it takes which matters. As to the case of Malone, it ‘elucidated the concept of . .
Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Cited – Gillan, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another HL 8-Mar-2006
The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – McE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
See Also – Malone v The United Kingdom ECHR 26-Apr-1985
Hudoc Judgment (Just satisfaction) Struck out of the list (friendly settlement) . .
Cited – Esbester v United Kingdom ECHR 2-Apr-1993
(Commission) The claimant had been refused employment within the Central Office of Information. He had been accepted subject to clearance, but that failed. He objected that he had been given no opportunity to object to the material oin which his . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Kinloch v Her Majesty’s Advocate SC 19-Dec-2012
The appellant said that the police officers had acted unlawfully when collecting the evidence used against him, in that the information used to support the request for permission to undertake clandestine surveillance had been insufficiently . .
Cited – Regina v Khan (Sultan) HL 2-Jul-1996
The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to . .
Cited – The Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
Cited – Privacy International, Regina (on The Application of) v Investigatory Powers Tribunal and Others SC 15-May-2019
The Court was asked whether the actions of the Investigatory Powers Tribunal were amenable to judicial review: ‘what if any material difference to the court’s approach is made by any differences in context or wording, and more particularly the . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Disclosure of older minor offences to employers 48 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Leading Case

Updated: 02 January 2022; Ref: scu.164936

The Sunday Times v The United Kingdom (No 1): ECHR 6 Nov 1980

The Court had held, inter alia, that there had been a breach of Article 10 by reason of an injunction granted against Times Newspapers Limited in accordance with the English law of contempt of court but no breach of Article 14 (art. 14).
During the proceedings on the merits, the applicants, without quantifying their claim, had requested the Court to declare, in application of Article 50, that the Government of the United Kingdom should pay the costs and expenses which they, the applicants, had incurred in connection with the contempt litigation in the English courts and the proceedings before the Commission and the Court.
Held: By thirteen votes to three that the United Kingdom was to pay to the applicants, in respect of costs and expenses incurred in connection with the proceedings before the Commission and the Court, the sum of twenty-two thousand six hundred and twenty-six pounds sterling and seventy-eight pence, but rejects unanimously the remainder of the claim for just satisfaction.
The requirement of foreseeability was summarised by the court as follows: ‘A norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.’

Mr. G. BALLADORE PALLIERI, P
[1980] ECHR 6, (1981) 3 EHRR 317
Bailii
European Convention on Human Rights 50
Human Rights
Citing:
See Also – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .

Cited by:
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Disclosure of older minor offences to employers 48 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Costs, Media

Updated: 02 January 2022; Ref: scu.564993

APVCO 19 Ltd and Others, Regina (on The Application of) v HM Treasury and Another: CA 30 Jun 2015

The primary issue in this case is whether certain retrospective tax legislation should be declared to be incompatible with the appellants’ rights under the European Convention on Human Rights

Black, Floyd, Vos LJJ
[2015] EWCA Civ 648, [2015] STI 2021, [2015] WLR(D) 279, [2015] BTC 26, [2015] STC 2272
Bailii, WLRD
England and Wales

Human Rights, Taxes Management, Stamp Duty

Updated: 01 January 2022; Ref: scu.549746

Re X (Court of Protection Practice): CA 16 Jun 2015

This appeal concerns the practice and procedure to be adopted in applications to the Court of Protection in deprivation of liberty cases.

[2015] EWCA Civ 599, [2016] 1 FCR 65, [2015] COPLR 582, [2016] 1 WLR 227, [2015] WLR(D) 257, [2016] 1 All ER 533
Bailii
England and Wales

Health, Human Rights, Litigation Practice

Updated: 01 January 2022; Ref: scu.548999

Sikic v Croatia: ECHR 15 Jul 2010

9143/08, [2010] ECHR 1115
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 January 2022; Ref: scu.420792

Capeau v Belgium: ECHR 13 Jan 2005

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-2; Not necessary to examine Art. 14.
The accused had been investigated for suspected arson but discharged by the court on the grounds that there was insufficient evidence to commit him for trial. He claimed compensation for pre-trial detention on remand. Under the local law, there was a right to such compensation either if the accused was ‘exculpated’ by the criminal court (which he had not been) or if he established his innocence. The Belgian court refused the application for compensation on the grounds that the accused had not established his innocence. The Strasbourg court held that to refuse compensation could not by itself amount to a breach of article 6(2) but that the requirement that the accused prove his innocence did so. It concluded that this provision ‘allowed doubt to attach itself to the correctness of the court’s decision’.

42914/98, [2005] ECHR 12
Worldlii, Bailii
European Convention on Human Rights
Human Rights
Cited by:
See Also – Capeau v Belgium ECHR 8-Jun-2011
. .
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 January 2022; Ref: scu.227665

Englert v Germany: ECHR 25 Aug 1987

Hudoc Preliminary objection rejected (non-exhaustion); No violation of Art. 6-2

10282/83, [1987] ECHR 19, (1991) 13 EHRR 392
Worldlii, Bailii
Human Rights
Cited by:
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 January 2022; Ref: scu.164999

Dicle And Sadak v Turkey: ECHR 16 Jun 2015

48621/07 – Chamber Judgment (French text), [2015] ECHR 577
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 January 2022; Ref: scu.549023

Lutz v Germany: ECHR 25 Aug 1987

Only criminal charges attract the additional protections under article 6(2) and 6(3). Insofar as these provisions apply to ‘everyone charged with a criminal offence’ it is well established in the jurisprudence of the European Court of Human Rights that this concept is co-extensive with the concept of the determination of any criminal charge. As to whether a successful defendant was entitled to an award of costs in his favour: The Court points out, first of all, like the Commission and the Government, that neither Article 6 (2) nor any other provision of the Convention gives a person ‘charged with a criminal offence’ a right to reimbursement of his costs where proceedings taken against him are discontinued. The refusal to reimburse Mr Lutz for his necessary costs and expenses accordingly does not in itself offend the presumption of innocence. Counsel for the applicant moreover stated, in reply to a question from the President, that his client was not challenging that refusal but solely the reasons given for it. Nevertheless, a decision refusing reimbursement of an accused’s necessary costs and expenses following termination of proceedings may raise an issue under Article 6 (2) if supporting reasoning which cannot be dissociated from the operative provisions amounts in substance to a determination of the accused’s guilt without his having previously been proved guilty according to law and, in particular, without his having had an opportunity to exercise the rights of the defence.’

9912/82, [1987] ECHR 20, (1987) 10 EHRR 182
Worldlii, Bailii
European Convention on Human Rights 6
Human Rights
Cited by:
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Her Majesty’s Attorney General for Gibraltar v Shimidzu (Berllaque, Intervenor) PC 28-Jun-2005
(Gibraltar) The appellants sought to argue that the failure to allow an acquitted defendant any possible order for costs was a breach of the Constitution.
Held: Section 8 of the Constitution, like its analogue article 6 of the European . .
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 January 2022; Ref: scu.165000

Nolkenbockhoff v Germany: ECHR 25 Aug 1987

Hudoc Preliminary objection rejected (victim); No violation of Art. 6-2

10300/83, [1987] ECHR 21, (1991) 13 EHRR 360, (1988) 10 EHRR 163
Worldlii, Bailii
Human Rights
Cited by:
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 01 January 2022; Ref: scu.164981

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 the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the court expresses its agreement with the Government. However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the criminal sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so. It is on the basis of these criteria that the court will ascertain whether some or all of the applicants were the subject of a ‘criminal charge’ within the meaning of Article 6(1).’
The Court established three criteria for determining whether proceedings are ‘criminal’ within the meaning of the Convention, namely (a) the domestic classification, (b) the nature of the offence, and (c) the severity of the potential penalty which the defendant risks incurring.
Article 5 is concerned with the deprivation of liberty and not with mere restrictions on freedom of movement. Article 6 applied to a Board of Visitors’ adjudication within a prison.
A distinction based on the rank of soldiers was a distinction based on status within Article 14. ‘A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman.’
The list in sub-paragraphs (a) to (f) of the cases where deprivations of liberty are permitted is exhaustive and is to be narrowly interpreted.

5101/71, 5354/72, 5102/71, 5370/72, [1976] ECHR 3, 5100/71, (1976) 1 EHRR 647
Worldlii, Bailii
European Convention on Human Rights 5(1) 14
Human Rights
Cited by:
Cited – Regina v H (On appeal from the Court of Appeal (Criminal Division)) HL 30-Jan-2003
The defendant had been found unfit to stand trial, at a later hearing under the section, the jury had found that he had committed the act complained of. He was discharged but ordered to be placed on the sex offenders register. He appealed on the . .
Cited – Regina (Mudie and Another) v Dover Magistrates’ Court and Another CA 4-Feb-2003
The applicants wished to challenge the confiscation of their goods by the Commissioners of Customs and Excise on their return to Dover. They appealed the refusal of Legal Aid.
Held: The Convention guaranteed the right to legal assistance for . .
Cited – Gillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
Cited – Campbell and Fell v The United Kingdom ECHR 28-Jun-1984
Campbell and others had been involved in conduct within the prison leading to charges against them of mutiny and of striking an officer with a broom handle. The nature of the conduct in question was plainly susceptible of giving rise to criminal . .
Cited – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
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: . .
Cited – Regina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Tangney v The Governor of HMP Elmley and Another CA 29-Jul-2005
The claimant was a serving a life sentence. During prison disciplinary proceedings he was refused legal and other assistance, and an outside tribunal on the basis that since any finding would not lead to any loss of remission or extra time, his . .
Cited – 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 . .
Cited – MB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Secretary of State for Defence v Smith, Regina (on the Application of) CA 18-May-2009
The soldier had died of heatstroke after exercises in Iraq. The Minister appealed against a finding that the circumstances of his death required an investigation compliant with Article 2 human rights, saying that he was not subject to such . .
See Also – Engel And Others v The Netherlands (Article 50) ECHR 23-Nov-1976
ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient. . .
Cited – Secretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Gale and Another v Serious Organised Crime Agency SC 26-Oct-2011
Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had . .
Cited – Kaplan v United Kingdom ECHR 14-Dec-1978
(Admissibility) The Secretary of State had, after preliminary procedures, served notices on an insurance company disallowing it from writing any new business, because its managing director the applicant, had been found not to be a fit and proper . .
Cited – Mubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Armed Forces

Leading Case

Updated: 31 December 2021; Ref: scu.164879

Allen v The United Kingdom [GC]: ECHR 12 Jul 2013

Article 6-2
Presumption of innocence
Refusal of compensation following reversal of applicant’s conviction of criminal offence: no violation

Facts – In September 2000 the applicant was convicted of the manslaughter of her baby son on the basis of medical evidence that the boy’s injuries were consistent with ‘shaken baby syndrome’ (also known as ‘non-accidental head injury’ – ‘NAHI’). On appeal she claimed that new medical evidence suggested that the injuries could be attributed to a cause other than NAHI. In July 2005 the Court of Appeal (Criminal Division) (‘CACD’) quashed her conviction on the grounds that it was unsafe after finding that the new evidence might have affected the jury’s decision to convict. The prosecution did not apply for a re-trial given that the applicant had already served her sentence and a considerable amount of time had passed.
The applicant lodged a claim with the Secretary of State under section 133 of the Criminal Justice Act 1988 (‘the 1988 Act’), which provides that compensation shall be paid to someone who was convicted of a criminal offence but has subsequently had that conviction reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. Her claim was refused. An application for judicial review of that decision was dismissed by the High Court, which concluded that the CACD had only decided that the new evidence, when taken with the evidence given at trial, ‘created the possibility’ that a jury ‘might properly acquit’ the applicant. The Court of Appeal subsequently dismissed an appeal by the applicant after noting that the acquittal decision did ‘not begin to carry the implication’ that there was no case for her to answer, so that the test for a ‘miscarriage of justice’ had not been made out.
In her application to the European Court, the applicant alleged that the reasons given in the decision not to award her compensation had violated her right to be presumed innocent.
Law – Article 6 ss 2
(a) Scope of the case – The question before the Court was not whether the refusal of compensation per se violated the applicant’s right to be presumed innocent (Article 6 ss 2 did not guarantee a person acquitted of a criminal offence a right to compensation for a miscarriage of justice), but whether the individual decision refusing compensation in the applicant’s case, including the reasoning and the language used, was compatible with the presumption of innocence.
(b) Applicability – There were two aspects to Article 6 ss 2. The first imposed certain procedural requirements in the context of the criminal trial itself (for example relating to the burden of proof, presumptions of fact and law and the privilege against self-incrimination). The second, which was the one relevant in the applicant’s case, was aimed at protecting individuals who had been acquitted of a criminal charge, or in respect of whom criminal proceedings had been discontinued, from being treated by public officials and authorities as though they were in fact guilty. Where criminal proceedings had concluded, an applicant seeking to rely on Article 6 ss 2 in subsequent proceedings would have to show that there was a link between the two sets of proceedings. Such a link was likely to be present, for example, where the subsequent proceedings required examination of the outcome of the prior criminal proceedings and, in particular, where they obliged the court to analyse the criminal judgment, to engage in a review or evaluation of the evidence in the criminal file, to assess the applicant’s participation in some or all of the events leading to the criminal charge, or to comment on the subsisting indications of the applicant’s possible guilt. The necessary link was present in the instant case because the right to commence compensation proceedings was triggered by the acquittal in the criminal proceedings, and because the Secretary of State and the courts had had to have regard to the judgment in the criminal proceedings when making and reviewing the decision on compensation. Article 6 ss 2 was therefore applicable.
Conclusion: preliminary objection dismissed (unanimously).
(c) Merits – There was no single approach to ascertaining the circumstances in which Article 6 ss 2 would be violated in the context of proceedings which followed the conclusion of criminal proceedings. Much depended on the nature and context of the proceedings in which the impugned decision was adopted. However, in all cases and no matter what the approach applied, the language used by the decision-maker was of critical importance in assessing the compatibility of the decision and its reasoning with Article 6 ss 2.
Turning to examine the nature and context of the proceedings in the applicant’s case, the Court noted that the applicant’s acquittal was not an acquittal ‘on the merits’ in a true sense. Although formally an acquittal, the termination of the criminal proceedings in her case shared more of the features present in a case in which criminal proceedings had been discontinued.
It further noted that specific criteria had to be met under section 133 of the 1988 Act for the right to compensation to arise, namely: the claimant had to have been convicted, she had to have suffered punishment as a result, an appeal had to have been allowed out of time, and the ground for allowing the appeal had to have been that a new fact showed beyond reasonable doubt that there had been a miscarriage of justice. Those criteria reflected, with only minor linguistic changes, the provisions of Article 3 of Protocol No. 7 to the Convention, which had to be capable of being read in a manner which was compatible with Article 6 ss 2. Nothing in those criteria called into question the innocence of an acquitted person and the legislation itself did not require criminal guilt to be assessed.
As to the language used by the domestic courts, the Court did not consider that, when viewed in the context of the exercise which they had been required to undertake under section 133 of the 1988 Act, it had undermined the applicant’s acquittal or treated her in a manner inconsistent with her innocence. In assessing whether a ‘miscarriage of justice’ had arisen, the domestic courts had not commented on whether, on the basis of the evidence as it stood at the appeal, the applicant should be, or would likely be, acquitted or convicted. Equally, they had not commented on whether the evidence was indicative of her guilt or innocence. Indeed, they had consistently repeated that it would have been for a jury to assess the new evidence, had a retrial been ordered.
Moreover, under the law of criminal procedure in England it was for a jury in a criminal trial on indictment to assess the prosecution evidence and to determine the guilt of the accused. The CACD’s role in the applicant’s case was to decide whether the conviction had been ‘unsafe’, not to substitute itself for the jury in deciding whether, on the basis of the evidence now available, her guilt had been established beyond reasonable doubt. The decision not to order a retrial had spared the applicant the stress and anxiety of undergoing another criminal trial and she had not argued that there ought to have been a re-trial. Both the High Court and the Court of Appeal had referred extensively to the judgment of the CACD to determine whether a miscarriage of justice had arisen and did not seek to reach any autonomous conclusions on the outcome of the case. They had not questioned the CACD’s conclusion that the conviction was unsafe and had not suggested that the CACD had erred in its assessment of the evidence before it. They had accepted at face value the findings of the CACD and drawn on them, without any modification or re-evaluation, in order to decide whether the section 133 criteria had been satisfied.
Conclusion: no violation (unanimously).

25424/09 – Legal Summary, [2013] ECHR 782
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Allen v United Kingdom ECHR 12-Jul-2013
The claimant had successfully appealed against her conviction for the manslaughter of her child, after expert evidence had been discredited. She now appealed against the refusal of compensation. She said that despite her acquittal, she had not been . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 31 December 2021; Ref: scu.515129

Dobre And Others v Romania: ECHR 17 Mar 2015

The applicants complained as to the lack of an effective investigation into the death of a relative or violations allegedly committed their physical integrity during the military crackdown demonstrations against the regime in power.

Josep Casadevall, P
34160/09 – Chamber Judgment, [2015] ECHR 277
Bailii
European Convention on Human Rights
Human Rights

Human Rights

Updated: 30 December 2021; Ref: scu.545041

Horvath And Vajnai v Hungary: ECHR 23 Sep 2014

55795/11, 55798/11 – Committee Judgment, [2014] ECHR 1000
Bailii
European Convention on Human Rights
Human Rights
Cited by:
See Also – Noe, Vajnai And Bako v Hungary ECHR 23-Sep-2014
The applicants complained under Article 10 of the Convention that their convictions for displaying a red star were a breach of their right to freedom of expression. . .
See Also – Vajnai v Hungary No4 ECHR 23-Sep-2014
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 30 December 2021; Ref: scu.537281

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

Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state to acknowledge the detention or disclose the fate of the person who has been detained. Its cruelty and vice lie in the facts that the disappeared person is completely isolated from the outside world and at the mercy of their captors and that the person’s family is denied knowledge of what has happened to them.’

Leggatt J
[2015] EWHC 715 (Admin), [2015] WLR(D) 168, [2015] 3 WLR 503, [2017] QB 1015
Bailii, WLRD
England and Wales
Citing:
See Also – Al-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
Cited – Al-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .

Cited by:
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 26-Jun-2015
Reasons for orders following a case management hearing to review whether there are steps which the court should now be taking to procure compliance by the Secretary of State for Defence with the duty of the UK under articles 2 and 3 of the European . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 7-Apr-2016
The court considered the extent of the state’s obligations to investigate allegations of unlawful killing and ill-treatment of civilians by British soldiers in Iraq between 2003 and 2009. It follows a hearing to consider three issues: i) Whether the . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
See Also – Al-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
. .
Cited – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Armed Forces, Human Rights

Updated: 30 December 2021; Ref: scu.544341