Tag: Human Rights

Wegrzynowski And Smolczewski v Poland: ECHR 16 Jul 2013

33846/07 – Chamber Judgment, [2013] ECHR 690
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – Wegrzynowski And Smolczewski v Poland (Legal Summary) ECHR 16-Jul-2013
ECHR Article 8
Positive obligations
Courts’ refusal to order newspaper to remove article damaging applicant’s reputation from its Internet archive: no violation
Facts – The applicants are . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 November 2021; Ref: scu.512421

McCaughey and Others v The United Kingdom: ECHR 16 Jul 2013

43098/09 – Chamber Judgment, [2013] ECHR 682
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – McCaughey And Others v The United Kingdom (LS) ECHR 16-Jul-2013
Article 2
Positive obligations
Article 2-1
Effective investigation
Excessive delay in investigation into deaths at the hands of security forces in Northern Ireland: violation
Facts – The applicants were close relatives . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 November 2021; Ref: scu.512415

Vona v Hungary: ECHR 9 Jul 2013

35943/10 – Chamber Judgment, [2013] ECHR 653
Bailii
European Convention on Human Rights
Human Rights
Citing:
Cited – Vona v Hungary (Legal Summary) ECHR 9-Jul-2013
ECHR Article 11-1
Freedom of association
Dissolution of association involved in anti-Roma rallies and paramilitary parading: no violation
Facts – The applicant was the chair of the Hungarian . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 November 2021; Ref: scu.512250

Doherty v The United Kingdom: ECHR 20 Jun 2013

The applicant had been convicted of murder, being sentenced to life imprisonment. After release on licence, he was accused of indecent assaults on nieces. The licence was revoked in 2000, but then charges relating to the accusations were dropped. He complained that after review his licence was not reinstated, and his application still not heard until March 2005. The allegations were then found proven but the applicant had not tested the complainants’ evidence. The Court of Appeal had found that the tribunal had misdirected itself

76874/11 – Communicated Case, [2013] ECHR 665
Bailii
European Convention on Human Rights
Human Rights

Human Rights

Updated: 15 November 2021; Ref: scu.512227

Hasan Uzun v Turkey (Dec): ECHR 30 Apr 2013

ECHR Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Non-exhaustion of a new accessible and effective constitutional remedy: inadmissible

10755/13 – Legal Summary, [2013] ECHR 643, 10755/13 – Second Section (French Text), [2013] ECHR 642
Bailii, Bailii
European Convention on Human Rights, European Convention on Human Rights
Human Rights

Human Rights

Updated: 15 November 2021; Ref: scu.512226

Myh And Others v Sweden: ECHR 27 Jun 2013

50859/10 – Chamber Judgment, [2013] ECHR 613
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – MYH And Others v Sweden (LS) ECHR 27-Jun-2013
ECHR Article 3
Degrading treatment
Inhuman treatment
Expulsion
Proposed deportation of Christian family to Iraq: deportation would not constitute a violation
Facts – The applicants, who . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 November 2021; Ref: scu.512091

Yepishin v Russia: ECHR 27 Jun 2013

591/07 – Chamber Judgment, [2013] ECHR 612
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – Yepishin v Russia (Legal Summary) ECHR 27-Jun-2013
Article 34
Hinder the exercise of the right of petition
Prison administration’s refusal to pay postage for dispatch of prisoner’s letters to the European Court: no violation
Facts – The applicant, who was serving a prison sentence in . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 15 November 2021; Ref: scu.512105

Vassis And Others v France: ECHR 27 Jun 2013

62736/09 – Chamber Judgment (French Text), [2013] ECHR 614
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – Vassis And Others v France (Legal Summary) ECHR 27-Jun-2013
ECHR Article 5-3
Brought promptly before judge or other officer
48 hours’ police custody following 18 days’ deprivation of liberty on board vessel arrested on high seas: violation
Facts – The . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 15 November 2021; Ref: scu.512104

Radu v Germany (Legal Summary): ECHR 16 May 2013

ECHR Article 5-1-a
After conviction
Applicant’s continued placement in psychiatric hospital after expiry of his prison term: no violation
Facts – In 1995 the applicant was convicted of homicide and sentenced to eight and a half years’ imprisonment and placement in a psychiatric hospital on grounds of diminished responsibility. In making the order for the applicant’s placement, the sentencing court relied on expert evidence indicating that the applicant suffered from a serious personality disorder characterised by violent outbursts and diminished capability to control his acts and was likely to kill again if he found himself in a similar conflict situation. No appeal was lodged against that order, which therefore became final. After spending four years in prison, the applicant was transferred to a psychiatric hospital in 1998. However, in subsequent proceedings for review of the applicant’s detention, the medical director of the hospital concluded that the applicant’s placement was wrongful as, although he had an ‘accentuated personality’ and was very likely to reoffend if released, the applicant was not in fact suffering from a persisting pathological mental disorder and lacked the motivation to complete a course of therapy. The court dealing with the execution of sentences then ordered his return to prison, where he served the remainder of his prison sentence. In the meantime, however, the court of appeal upheld a decision by the regional court not to declare the applicant’s placement in a psychiatric hospital terminated, despite further expert psychiatric evidence confirming the medical director’s view that the applicant had not been suffering from a serious personality disorder diminishing his criminal responsibility at the time the offence was committed. The court of appeal considered that even though the sentencing court’s order for the applicant’s placement in a psychiatric hospital was the result of an erroneous legal qualification, that qualification could not be corrected by the courts dealing with the execution of sentences as to do so would violate the constitutional principle of the finality of judicial decisions. Accordingly, after completing his prison sentence in October 2003 the applicant was transferred to a psychiatric hospital. The domestic courts came to a like conclusion on a further review of the applicant’s psychiatric placement in 2006 and the Federal Constitutional Court declined to consider the applicant’s constitutional complaint.
In his application to the European Court, the applicant complained that his continued confinement in a psychiatric hospital had violated his right to liberty. His detention had been prolonged despite the fact that it had been established that he did not suffer and had in fact never suffered from a condition diminishing or excluding his criminal responsibility.
Law – Article 5-1 (a): The Court firstly had to establish whether there was a sufficient causal connection between the applicant’s conviction by the sentencing court in 1995 and his continuing deprivation of liberty from 2006 onwards. In that connection, it noted that both the sentencing court and the courts dealing with the execution of sentences agreed that the applicant suffered from a personality disorder and was likely to commit further offences if released. Further, even though they disagreed on the legal qualification of that disorder, the courts dealing with the execution of sentences had accepted that the classification by the sentencing court had acquired legal force and could not be changed. In that, connection, the Court noted that a court’s reliance on the findings in a final judgment of a criminal court to justify a person’s detention, even if such findings were or may have been wrong, did not, as a rule, raise an issue under Article 5-1: a flawed conviction would render a detention unlawful only if the conviction were the result of a flagrant denial of justice, which was not the case here. Given that the courts dealing with the execution of sentences had pursued the aims of protecting the public and providing treatment for the applicant’s personality disorder, the Court was satisfied that their decision not to release the applicant had been based on grounds consistent with the aims pursued by the sentencing court when ordering his detention in a psychiatric hospital. There therefore remained a sufficient causal connection for the purposes of sub-paragraph (a) of Article 5-1 between the applicant’s conviction in 1995 and his continuing detention in a psychiatric hospital. Such continuation of the applicant’s detention had a legal basis in domestic law, which under the domestic jurisprudence had been foreseeable in his case. Furthermore, the domestic courts had given detailed reasons for their decisions and their interpretation of the applicable provision of domestic law was aimed at protecting the finality of the sentencing court’s judgment, which could not be seen as contravening as such the purpose of Article 5. Finally, the applicant had not been arbitrarily deprived of his liberty since the domestic courts’ application of the domestic law did not render his release impossible as soon as it could be concluded that he would not commit any further unlawful acts. As the applicant had not yet met that condition, the execution of the detention order against him had not been suspended. Therefore, the order for the applicant’s continued confinement in a psychiatric hospital was ‘lawful’ and ‘in accordance with a procedure prescribed by law’, as required by Article 5-1.
Conclusion: no violation (five votes to two).

20084/07 – Legal Summary, [2013] ECHR 604
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – Radu v Germany ECHR 3-Jul-2012
. .

Cited by:
Summary – Radu v Germany ECHR 16-May-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Health

Updated: 15 November 2021; Ref: scu.512073

Twomey, Cameron And Guthrie v The United Kingdom (Judgment): ECHR 28 May 2013

Ineta Ziemele, P
67318/09 22226/12 – Admissibility Decision, [2013] ECHR 578
Bailii
European Convention on Human Rights, Criminal Justice Act 2003 46(3)
Human Rights
Citing:
Legal Summary – Twomey, Cameron and Guthrie v The United Kingdom (Legal Summary) ECHR 28-May-2013
ECHR Criminal proceedings
Article 6-1
Fair hearing
Equality of arms
Independent tribunal
Trial by judge sitting alone owing to risk of jury tampering: inadmissible
Facts – The case . .

Cited by:
Principal judgment – Twomey, Cameron and Guthrie v The United Kingdom (Legal Summary) ECHR 28-May-2013
ECHR Criminal proceedings
Article 6-1
Fair hearing
Equality of arms
Independent tribunal
Trial by judge sitting alone owing to risk of jury tampering: inadmissible
Facts – The case . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Updated: 14 November 2021; Ref: scu.511077

Turluyeva v Russia (judgment): ECHR 20 Jun 2013

63638/09 – Chamber Judgment, [2013] ECHR 566
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Judgment – Turluyeva v Russia (Summary) ECHR 20-Jun-2013
Article 2
Positive obligations
Article 2-1
Effective investigation
Authorities’ failure to protect life of a detainee who disappeared in life-threatening circumstances: violation
Facts – In October 2009 the . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 14 November 2021; Ref: scu.510990

Maksymenko and Gerasymenko v Ukraine (LS): ECHR 16 May 2013

ECHR Article 1 para. 1 of Protocol No. 1
Deprivation of property
Public interest
Invalidation ten years after the event of privatisation of hostel and all subsequent transfers of property without compensation: violation
Facts – In 2004 the applicants purchased a hostel that had been privatised in 1995 from S., a private company in liquidation. However, in 2006 the domestic courts invalidated the original 1995 decision to privatise the hostel and all subsequent transfers of property and ruled that ownership of the hostel was to be transferred to the town council. The applicants were awarded compensation to be paid by S, but this was never paid. In 2007 the regional court of appeal found in a separate case that the privatisation of another hostel in 1995 had been lawful, since hostels did not form part of State housing stock. Subsequently, the town council sold to their occupants twelve of the fourteen apartments at the hostel that had been purchased by the applicants.
Law – Article 1 of Protocol No. 1: There had been a deprivation of property which amounted to interference with the applicants’ right to the peaceful enjoyment of their possessions. The decision of 2006 invalidating the 1995 decision to privatise was based on a provision of national law which appeared unclear as there was no single approach at national-court level on whether ‘hostels’ were caught by the prohibition on privatising ‘housing stock’. The State authorities had, with a view to protecting the housing rights of others, corrected what they considered to be an erroneous interpretation of the law in force more than ten years earlier. In this context, the principle of good governance had particular importance and in addition to imposing an obligation on the authorities to act promptly to correct a mistake, could also require the payment of adequate compensation or another type of appropriate reparation. Before taking the decision to sell the hostel to the applicants, the board of creditors had informed the State authorities of possible complications but in January 2004 the town mayor had explicitly refused to take over ownership of the hostels. A year later the prosecutor had instituted court proceedings seeking to invalidate the contract of sale of the hostel on the grounds that the hostel should not have been privatised in the first place. However, a year after the decision satisfying the prosecutor’s claim was upheld by a higher court, 85% of the hostel apartments had been sold on to their occupants. This confirmed that the State did not intend to keep the hostel for use as social housing. Lastly, the applicants had not received any compensation for the property. Although the domestic courts had ordered S. to pay compensation, they must have been aware by then that the company was already insolvent. In such circumstances, the Court was not convinced that the applicants were required to institute further proceedings to claim damages from the State and so dismissed the Government’s objection in that regard. Accordingly, even assuming the interference in question was based on clear and foreseeable provisions of the national law and was aimed at protecting the housing rights of others, the fact that the applicants, who were bona fide purchasers, were unable to obtain compensation for their losses, which had been inflicted on them by the inconsistent and erroneous decisions of the State authorities, constituted a disproportionate burden.
Conclusion: violation (unanimously).
Article 41: EUR 6,127 in respect of pecuniary damage, EUR 3,000 in respect of non-pecuniary damage.

49317/07 – Legal Summary, [2013] ECHR 543
Bailii
European Convention on Human Rights
Human Rights
Citing:
Full Judgebt – Maksymenko and Gerasymenko v Ukraine ECHR 16-May-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Land

Updated: 14 November 2021; Ref: scu.510971

Nataliya Mikhaylenko v Ukraine: ECHR 30 May 2013

49069/11 – Chamber Judgment, [2013] ECHR 484
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – Nataliya Mikhaylenko v Ukraine (LS) ECHR 30-May-2013
ECHR Civil proceedings
Article 6-1
Access to court
Lack of access to court for person seeking restoration of her legal capacity: violation
Facts – In 2007 the applicant was deprived of her . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 November 2021; Ref: scu.510739

Rappaz v Switzerland (Dec): ECHR 26 Mar 2013

73175/10 – Chamber Judgment (French Text), [2013] ECHR 508
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – Rappaz v Switzerland (Dec) Legal Summary ECHR 26-Mar-2013
ECHR Article 2
Positive obligations
Decision to force-feed rather than release prisoner on hunger strike: inadmissible
Article 3
Degrading treatment
Inhuman treatment
Possible . .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 November 2021; Ref: scu.510728

Rappaz v Switzerland (Dec) Legal Summary: ECHR 26 Mar 2013

ECHR Article 2
Positive obligations
Decision to force-feed rather than release prisoner on hunger strike: inadmissible
Article 3
Degrading treatment
Inhuman treatment
Possible force-feeding of prisoner on hunger strike in protest at his detention: inadmissible
Facts – In 2000 the applicant was sentenced to sixteen months’ imprisonment for drug trafficking. He began a hunger strike in prison. He was released for thirty days and then returned to prison and finished serving his sentence without major incident. In 2008 the Cantonal Court sentenced the applicant to five years and eight months’ imprisonment for various offences. The day he began serving his sentence in March 2010 he embarked on a hunger strike, seeking the legalisation of cannabis use and protesting against his sentence, which he considered excessively harsh. Arguing that his health was suffering, the applicant applied to be released. On 26 August 2010 the Federal Court rejected his application, finding that force-feeding was a viable alternative to release. In December 2010 the applicant ended his hunger strike without having been force-fed.
Law – Article 2: Where a prisoner went on hunger strike, the potential consequences for his or her state of health would not entail a violation of the Convention provided that the national authorities had duly examined and dealt with the situation. This was particularly the case where the person concerned continued to refuse food and drink despite the deterioration in his or her health. In the present case the administrative and judicial authorities concerned had immediately recognised the risk which the hunger strike posed to the applicant’s health and even his life and had taken the measures they deemed necessary in order to avert that risk. Thus, the applicant had first been released for fifteen days. He had subsequently been redetained and after resuming his hunger strike had been transferred to hospital to serve his sentence under medical supervision, before being placed under house arrest. When he was imprisoned again following the Federal Court judgment of 26 August 2010 he had again refused food and drink and had been transferred once more to hospital. The applicant’s condition had started to give cause for alarm in October 2010. By that time, he had no longer been in prison but had been admitted to the prison wing of the hospital. There he had been under the constant supervision of a medical team who had kept the authorities informed of any change in the situation and had declared their willingness to ‘make [the applicant] as comfortable as possible’ should he persist with his decision to end his life. Furthermore, in order to prevent further deterioration of the applicant’s health, the administrative authority, followed by the Cantonal Court, had ordered that he be force-fed. When the doctor treating the applicant had refused to perform such a step against his patient’s will, the Cantonal Court had even gone so far as to serve a formal injunction on him in person, with which he had to comply or face prosecution. It could therefore not be said that the national authorities had not duly examined and dealt with the situation as required by Article 2 of the Convention, nor was their intention to protect the applicant’s life open to doubt. Moreover, it had in no sense been established that, while in hospital, the applicant had not received the same care he would have been given had he embarked on a hunger strike outside prison.
Conclusion: inadmissible (manifestly ill-founded).
Article 3: With regard to the decision to force-feed the applicant, it was not established that it had actually been implemented. As to the issue of medical necessity, the order to force-feed the applicant had been given when his state of health had begun to give cause for alarm, and was to be carried out by a qualified medical team in a hospital setting which was likely to be equipped to deal with such situations; the only objections raised by the doctors had been of an ethical rather than a medical nature. As far as the existence of procedural safeguards was concerned, the regulations governing the situation of prisoners on hunger strike did not lay down specific provisions concerning force-feeding. However, the decisions ordering the doctor treating the applicant to begin force-feeding him had been based on the Federal Court judgment of 26 August 2010, which had examined the issue in depth and had established several principles which henceforth represented the state of Swiss law in this sphere. The Federal Court had also considered the general law and order clause laid down in the Federal Constitution to provide a sufficient legal basis, allowing as it did restrictions to be placed on fundamental rights by means other than legislation in the event of a serious, imminent and direct threat. The Court had already held that a similar provision satisfied the relevant requirements of foreseeability, clarity and proportionality. Accordingly, even if the decision to force-feed the applicant had been implemented – if he had not ended his hunger strike – there were no grounds for asserting a priori that this would have resulted in treatment exceeding the minimum threshold of severity required by Article 3 of the Convention. Any such assertion at that juncture would be mere speculation.
Conclusion: inadmissible (manifestly ill-founded).
(See also Horoz v. Turkey, no. 1639/03, 31 March 2009, Information Note no. 117; and Nevmerzhitsky v. Ukraine, no. 54825/00, 5 April 2005, Information Note no. 74)

73175/10 – Legal Summary, [2013] ECHR 509
Bailii
European Convention on Human Rights 2 3
Human Rights
Cited by:
Legal Summary – Rappaz v Switzerland (Dec) ECHR 26-Mar-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 12 November 2021; Ref: scu.510729

Valiuliene v Lithuania (LS): ECHR 26 Mar 2013

ECHR Article 3
Degrading treatment
Inhuman treatment
Effective investigation
Investigative and procedural flaws resulting in prosecution of domestic-violence case becoming time-barred: violation
Facts – In February 2001 the applicant applied to a district court to bring a private prosecution after allegedly being beaten by her partner on five separate occasions in January and February 2001. In January 2002 the court forwarded her complaint to the public prosecutor, ordering him to start his own pre-trial criminal investigation; the applicant’s partner was then charged with systematically causing the applicant minor bodily harm. The investigation was twice halted by police investigators for lack of evidence, but on each occasion was reopened on appeal on the grounds that it had not been sufficiently thorough. The public prosecutor discontinued the investigation in June 2005 as a legislative reform in May 2003 meant that prosecutions in respect of minor bodily harm now had to be brought by the victim privately unless the case was of public interest or the victim could not protect her rights through a private prosecution. The district court upheld that decision. When the applicant lodged a new request to bring a private prosecution, this was refused without examination of the merits as the prosecution had become time-barred.
Law – Article 3: The applicant had suffered ill-treatment that was sufficiently serious to reach the minimum level of severity required to engage the Government’s positive obligation under Article 3. In reaching that conclusion, the Court took into account the physical injuries sustained by the applicant (in the form of bruising and scrapes to the face and body), the aggravating circumstance that the violence had continued over a period of time with five episodes within a month, and the feelings of fear and helplessness to which the applicant had been subjected. On this latter point, it noted that the psychological impact was an important aspect of domestic violence.
The Court went on to examine whether the domestic legal system, and in particular the applicable criminal law, had failed to provide practical and effective protection of the rights guaranteed by Article 3. The Court was satisfied that at the material time Lithuanian law provided a sufficient regulatory framework in that it was a criminal offence to cause minor bodily harm. Although after 1 May 2003 such offences could only be prosecuted on a complaint by the victim, who in turn became the private prosecutor, the public prosecutor nevertheless retained the right to open a criminal investigation if the offence was of public importance or the victim was unable to protect his or her interests.
As to the manner in which the law was implemented in the applicant’s case, the applicant had contacted the district court almost immediately with a view to bringing a private prosecution and had provided specific descriptions of each incident and the names of witnesses. While the authorities had initially acted without undue delay, the case was transferred to a public prosecutor after the applicant’s partner repeatedly failed to appear at court. Thereafter, the investigation was twice discontinued for lack of evidence only to be reopened after senior prosecutors ruled that it had not been sufficiently thorough. This revealed a serious flaw on the part of the State.
Furthermore, even though the legislation had changed in May 2003, the prosecutor had decided to return the case to the applicant for private prosecution only in June 2005, two years after the legislative reform,. That decision was upheld despite the risk of the prosecution becoming time-barred and despite the fact that, even after the reform, it was still possible for the public prosecutor to pursue the investigation if it was in the public interest. As a result of that decision and even though the applicant acted without delay, her application for a private prosecution was dismissed as being out of time.
The practices at issue in the instant case and the manner in which the criminal-law mechanisms had been implemented had therefore not provided the applicant adequate protection.
Conclusion: violation (six votes to one).
Article 41: EUR 5,000 in respect of non-pecuniary damage.
(See also: Opuz v. Turkey, no. 33401/02, 9 June 2009, Information Note no. 120; Sandra Jankovic v. Croatia, no. 38478/05, 5 March 2009, Information Note no. 117; Hajduova v. Slovakia, no. 2660/03, 30 November 2010, Information Note no. 135; Kalucza v. Hungary, no. 57693/10, 24 April 2012; and Dordevic v. Croatia, no. 41526/10, 24 July 2012, Information Note no. 154)

33234/07 – Legal Summary, [2013] ECHR 510
Bailii
European Convention on Human Rights 3
Human Rights
Cited by:
Legal Summary – Valiuliene v Lithuania ECHR 26-Mar-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 November 2021; Ref: scu.510732

Evans v United Kingdom: ECHR 7 Mar 2006

The claimant had entered into fertilisation treatment with her boyfriend. They both signed an agreement under which the fertilised sperm were only later to be implanted with the agreement of both. The couple separated, and the potential father withdrew his consent to the treatment, and the woman was refused implantation. She complained of interference with her article 8 rights.
Held: Her claim failed. The Court will generally allow the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights.
The 1990 Act had been passed after detailed consideration and consultation. It had been explained to the applicant that the completion of the treatment depended upon the continuing consent of her partner, and she had signed to agree to this. An embryo did not itself have a right to life. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted.

C.L. Rozakis, P
Times 17-Mar-2006, 6339/05, [2006] ECHR 200, [2007] ECHR 264, [2007] ECHR 265, (2008) 46 EHRR 34, [2007] 2 FCR 5, [2007] 1 FLR 1990, (2007) 95 BMLR 107, [2007] Fam Law 588, 22 BHRC 190
Worldlii, Bailii, Bailii, Bailii PR
European Convention on Human Rights 8, Human Fertilisation and Embryology Act 1990
Human Rights
Cited by:
See Also – Evans v The United Kingdom ECHR 22-Nov-2006
. .
See Also – Evans v United Kingdom ECHR 10-Apr-2007
The claimant said that the English law on assisted conception infringed her right to family life. She had began treatment with her partner, and was given a cycle of in-vitro fertilisation before her cancerous condition required removal of her . .
Cited – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Health

Leading Case

Updated: 12 November 2021; Ref: scu.239579

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 of the CCTV system, of the police and otherwise. Only in later versions was his identity protected.
Held: The disclosure infringed his rights of privacy: ‘Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Art. 8. The Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’.’ The distribution of the footage without appropriate conditions to protect his privacy, infringed article 8. The distribution generated far more publicity than would have arisen otherwise, and was a serious breach. There were no relevant or sufficient reasons for the publicity. The English legal system had not afforded him a remedy, infringing also his article 13 rights.

Times 03-Feb-2003, 44647/98, (2003) 36 EHRR 41, [2003] ECHR 44, [2003] 36 EHRR 719, [2011] ECHR 1661
Worldlii, Bailii, Bailii
European Convention on Human Rights 8 13
Cited by:
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
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 – 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 – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
Cited – Energy Financing Team Ltd and others v The Director of the Serious Fraud Office, Bow Street Magistrates Court Admn 22-Jul-2005
The claimants sought to set aside warrants and executions under them to provide assistance to a foreign court investigating alleged unlawful assistance to companies in Bosnia Herzegovina.
Held: The issue of such a warrant was a serious step. . .
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
Cited – McKennitt and others v Ash and Another QBD 21-Dec-2005
The claimant sought to restrain publication by the defendant of a book recounting very personal events in her life. She claimed privacy and a right of confidence. The defendant argued that there was a public interest in the disclosures.
Held: . .
Cited – Murray v Express Newspapers Plc and Another ChD 7-Aug-2007
The claimant, now aged four and the son of a famous author, was photographed by use of a long lens, but in a public street. He now sought removal of the photograph from the defendant’s catalogue, and damages for breach of confidence.
Held: The . .
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 – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
mosley_newsgroupQBD2008
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 – 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: . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Leading Case

Updated: 11 November 2021; Ref: scu.178834

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 of article 8 was maintained by the respondent.
Held: (Arden LJ dissenting) The appeal failed. However, there was no need first to show an infringement of the claimants’ article 8 rights before complaining of discrimination under article 14. It was enough to show that the complaint fell within the ambit of article 8. Nevertheless, the policy of the government to wait and see as to the development of demand for civil partnerships was proportionate. There remained an impasse but this could not be left indefinitely. The interference with the appellants’ rights under article 8, read together with article 14 was, at least for the time being, justified.
Beatson LJ said: ‘In my view, at present, the Secretary of State’s position is objectively justified. The future of the legal status of civil partnerships is an important matter of social policy that government is entitled to consider carefully. At the hearing the Secretary of State’s approach was described as a ‘wait and see’ approach, although it would be more accurate to describe it as a ‘wait and evaluate’ approach. Whatever term is used to describe the approach, it would not have been available to the Secretary of State prior to the enactment and coming into force of the 2013 Act. This is because it would not have been possible at that time to determine how many people would continue to enter into civil partnerships or want to do so because they share the appellants’ sincere objections to marriage. The relevant start date for consideration is thus 13 March 2014 when the provisions extending marriage to same sex couples came into force.’
and ‘I can well understand the frustration which must be felt by the appellants and those different sex couples who share their view about marriage, about what they regard as the Government’s slow progress on this issue. Some couples in their position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership. This is a factor in the proportionality balance, and because this is a case of differential treatment on the basis of sexual orientation, that balance must command anxious scrutiny. But against the background of a serious but unresolved difficulty which affects the public as a whole, and the practicable impossibility of some interim measure, such as temporarily opening civil partnership to different sex couples when the eventual decision may be to abolish it, I am unable to regard the Secretary of State’s current policy of ‘wait and evaluate’ as a disproportionate response.’
Briggs LJ said: ‘I can well understand the frustration which must be felt by the appellants and those different sex couples who share their view about marriage, about what they regard as the Government’s slow progress on this issue. Some couples in their position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership. This is a factor in the proportionality balance, and because this is a case of differential treatment on the basis of sexual orientation, that balance must command anxious scrutiny. But against the background of a serious but unresolved difficulty which affects the public as a whole, and the practicable impossibility of some interim measure, such as temporarily opening civil partnership to different sex couples when the eventual decision may be to abolish it, I am unable to regard the Secretary of State’s current policy of ‘wait and evaluate’ as a disproportionate response.’
Arden LJ found that the interference with the appellants’ article 8 and article 14 rights was not justified, but considered that it pursued a legitimate aim, saying that the state had the option to eliminate the discrimination ‘in any way it sees fit’ and therefore must be entitled to ‘some time to make its choice.’

Arden, Beatson, Briggs LJJ
[2017] EWCA Civ 81, [2017] WLR(D) 123, [2017] HRLR 3, [2018] QB 519, [2017] 4 All ER 47, [2017] 2 FLR 692, [2017] 3 WLR 1237, [2017] 2 FCR 324
Bailii, WLRD
Marriage (Same Sex Couples) Act 2013, Civil Partnership Act 2004, European Convention on Human Rights 8 14, Human Rights Act 1998
England and Wales
Citing:
Appeal from – Steinfeld and Another v The Secretary of State for Education Admn 29-Jan-2016
The claimant heterosexual couple wanted to enter into a civil partnership rather than to marry.
Held: The request for judicial review failed. On the authorities, the bar did not fall within the scope or ambit of Article 8. The appellants could . .
Cited – 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 . .
Cited – Petrovic v Austria ECHR 27-Mar-1998
The applicant was refused a grant of parental leave allowance in 1989. At that time parental leave allowance was available only to mothers. The applicant complained that this violated article 14 taken together with article 8.
Held: The . .
Cited – Schalk and Kopf v Austria ECHR 22-Nov-2010
The applicants, a same sex couple sought the right to marry.
Held: The application failed. Same-sex couples are in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their . .
Cited – Vallianatos And Others v Greece (LS) ECHR 7-Nov-2013
ECHR (Grand Chamber) Article 14
Discrimination
Exclusion of same-sex couples from ‘civil unions’: violation
Facts – The first application was lodged by two Greek nationals, and the second by six . .
Cited – Vallianatos And Others v Greece ECHR 7-Nov-2013
Grand Chamber Judgment. The applicants alleged that the fact that the ‘civil unions’ introduced by the respondent were designed only for couples composed of different-sex adults had infringed their right to respect for their private and family life . .
Cited – Pajic v Croatia ECHR 23-Feb-2016
The applicant alleged discrimination on the grounds of her sexual orientation in obtaining a residence permit in Croatia, contrary to Articles 8 and 14 of the Convention. . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Clift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .

Cited by:
At CA – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Family, Human Rights

Updated: 11 November 2021; Ref: scu.575337

National Secular Society and Another, Regina (on The Application of) v Bideford Town Council: Admn 10 Feb 2012

The claimant challenged the placing of a prayer on the agenda of the respondent’s meetings.
Held: The claim succeeded. The placing of such elements on the Agenda was outside the powers given to the Council, and the action was ultra vires: ‘S111 is the statutory expression of the powers implied by common law for corporations. Even if an act could fall into a category outside s111 but for which no statutory authority was required at all, saying prayers would not be one of them: it can be controversial, the importance attached by the Council to saying prayers as part of the meeting means that it cannot be treated as a trivial matter.’
and ‘There is a contradiction at the heart of the Council’s position. It has made the prayers part of the formal business of the Council, yet it says that Councillors, summoned to its meetings, are not obliged to be present for this incident to the transaction of business nor to participate in it. I do not think that what falls within the scope of s111, as an incident to the transaction of the business of the meeting, can then be regarded as such that attendance for it is unnecessary or optional, in distinction from all other business.’
and ‘I do not think that the 1972 Act, dealing with the organisation, management and decision-making of local Councils, should be interpreted as permitting the religious views of one group of Councillors, however sincere or large in number, to exclude or, even to a modest extent, to impose burdens on or even to mark out those who do not share their views and do not wish to participate in their expression of them. They are all equally elected Councillors.’
Ouseley J said: ‘The issue is solely about whether prayers can be said as a part of the formal business transacted by the Council at a meeting to which all Councillors are summoned. It is quite wrong for the Defendant to suggest that the Claimants would be introducing a bar on acts of worship before the meeting, thus hindering the exercise by Councillors who wished to pray of their right to do so.’

Ouseley J
[2012] EWHC 175 (Admin)
Bailii
Equality Act 2006, European Convention on Human Rights 9, Local Government Act 1972 111
England and Wales
Citing:
Cited – Regina v Richmond Upon Thames London Borough Council, ex parte McCarthy and Stone (Developments) Ltd HL 14-Nov-1991
A Local Authority was not able to impose charge for inquiries as to speculative developments and similar proposals, or for consultations, and pre-planning advice. There was no statutory authority for such a charge, and it was therefore unlawful and . .
Cited – Hazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .
Cited – Watkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
Cited – Eweida v British Airways Plc CA 12-Feb-2010
The court was asked whether, by adopting a staff dress code which forbade the wearing of visible neck adornment and so prevented the appellant, a Christian, from wearing with her uniform a small, visible cross, British Airways (BA) indirectly . .
Cited – Johns and Another, Regina (on The Application of) v Derby City Council and Another Admn 28-Feb-2011
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be . .
Cited – McFarlane v Relate Avon Ltd CA 29-Apr-2010
The employee renewed his application for leave to appeal against refusal of his discrimination claim on the grounds of religious belief. He worked as a relationship sex therapist, and had signed up to the employer’s equal opportunities policy, but . .
Cited – Buscarini And Others v San Marino ECHR 18-Feb-1999
(Grand Chamber) Elected MPs complained that they were not allowed to take their seats unless they swore an oath in religious form.
Held: This requirement was not compatible with article 9. ‘That freedom [Article 9 freedom of thought] entails, . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Secretary of State for Defence v Elias CA 10-Oct-2006
The claimant said that a scheme drawn by the defendant for compensating British civilians interned by the Japanese during the second world war was indirectly discriminatory on racial grounds by requiring a national origin link with the UK. She had . .
Cited – Lautsi v Italy ECHR 18-Mar-2011
(Grand Chamber) The applicants complained that the presence in all state schoolrooms of a crucifix on the wall infringed the principle of secularism. The routine presence in state school classrooms of a crucifix, which was not used for worship, . .
Cited – Ladele v London Borough of Islington CA 15-Dec-2009
The appellant was employed as a registrar. She refused to preside at same sex partnership ceremonies, saying that they conflicted with her Christian beliefs.
Held: The council’s decision had clearly disadvantaged the claimant, and the question . .

Lists of cited by and citing cases may be incomplete.

Local Government, Human Rights, Ecclesiastical

Updated: 11 November 2021; Ref: scu.451362

Lavida And Others v Greece: ECHR 30 May 2013

The case concerned the education of Roma children who were restricted to attending a primary school in which the only pupils were other Roma children.
Held: Violation of Article 14 (prohibition of discrimination) in conjunction with Article 2 of Protocol No. 1 (right to education)
The Court found that the continuing nature of this situation and the State’s refusal to take anti-segregation measures implied discrimination and a breach of the right to education.

7973/10 – Chamber Judgment (French Text), [2013] ECHR 488
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Children, Discrimination, Education

Leading Case

Updated: 11 November 2021; Ref: scu.510736

Child X (Residence and Contact- Rights of Media Attendance) (Rev 2): FD 14 Jul 2009

The father applied to the court to have the media excluded from the hearing into the residence and contact claims relating to his daughter.
Held: It was for the party seeking such an order to justify it. In deciding whether or not to exclude the press in the welfare or privacy interests of a party or third party the Court is to conduct the balancing exercise and process of parallel analysis in Campbell as elaborated in re S. Whilst the principle of open justice is important in civil proceedings concerning children, the need for the protection of children from publicity in the course of proceedings which concern them, was long ago recognised at common law in Scott v Scott, and is provided for in the statutory provisions as to identification.
In this case all the issue related to the child. The sole purpose of the media interest was in the celebrity of the parents. The press should be excluded.

Sir Mark Potter, President
[2009] EWHC 1728 (Fam), Times 27-Jul-2009, [2009] Fam Law 930, [2009] EMLR 26
Bailii
Family Proceedings Rules 1991 (1991 No. 1247) 10.28(4), Administration of Justice Act 1960 12(1), Children Act 1989 97(2), Children and Young Persons Act 1933 39(1), European Convention on Human Rights 8 10
England and Wales
Citing:
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Moser v Austria ECHR 2006
The applicant’s son had been taken into care by a public authority. The family complained that the proceedings had been held in secret.
Held: There had been a breach of Article 6, inter alia on the ground that the hearing had not been in . .
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – B v The United Kingdom; P v The United Kingdom ECHR 2001
The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the . .
Cited – P v BW (Children Cases: Hearings in Public) FD 2003
The applicant sought a joint residence order, and for a declaration that the rules preventing such hearings being in public breached the requirement for a public hearing.
Held: Both FPR 1991 rule 4.16(7) and section 97 are compatible with the . .
Cited – Allan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .
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 – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – C v Crown Prosecution Service Admn 8-Feb-2008
The court considered the practice of hearing submissions from the media in relation to reporting restrictions.
Held: Thomas LJ rejected the submission that, in conducting the Re S balancing exercise the Court should have regard to the public . .
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 – 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 – Handyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Lists of cited by and citing cases may be incomplete.

Children, Media, Human Rights

Updated: 11 November 2021; Ref: scu.349067

Revitt, Borg and Barnes v Director of Public Prosecutions: Admn 8 Sep 2006

The defendants appealed against refusal of leave to withdraw their pleas of guilty. They argued that the current practice infringed their human rights.
Held: The magistrates had been correct not to allow the defendants to withdraw their pleas. Where a defendant makes an unequivocal plea of guilty which the court accepts, the defendant is thereupon ‘proved guilty according to law’ within the meaning of Article 6(2). The presumption of innocence ceases to apply and he can be sentenced on the basis that he has been proved guilty. A guilty plea can only found a ‘conviction’ and bring to an end the presumption of innocence where it is unequivocal. If it is equivocal, it must be treated as a plea of ‘not guilty’. If after an unequivocal plea of guilty has been made, it becomes apparent that the defendant did not appreciate the elements of the offence to which he was pleading guilty, then it is likely to be appropriate to permit him to withdraw his plea.

Lord Phillips LCJ, Bean J
Times 14-Sep-2006, [2006] EWHC 2266 (Admin), [2006] 1 WLR 3172, [2007] 1 Cr App R 19, [2007] RTR 23, (2006) 170 JP 729
Bailii
European Convention on Human Rights 6
England and Wales
Citing:
Cited – S v Recorder of Manchester and Others HL 1971
S, a 16 year old boy pleaded guilty to attempted rape before a juvenile court. The magistrates adjourned the case for inquiry reports. On the adjourned hearing, his legal representative referred to evidence of the boy’s mental condition, and asked . .
Cited – X v United Kingdom ECHR 23-Mar-1972
(Commission) The applicant said that having been pressured into pleading guilty: ‘The Commission examined this complaint under Article 6 (1) (Art. 6-1) of the Convention which guarantees the right to a fair trial, and also under Article 6(2) (Art. . .
Cited – Regina v Bournemouth Justices, ex parte Maguire 1997
If magistrates having heard an application for leave to withdraw a plea of guilty conclude that the evidence described by the prosecution are not sufficient to find guilt, they may allow the plea to be withdrawn. Kennedy LJ: ‘Of course the court . .
Cited – RO v United Kingdom ECHR 11-May-1994
(Commission) The applicant complained that the court had refused to allow him to withdraw his plea of guilty: ‘It is in the first place for the domestic authorities to determine rules regulating procedural aspects of criminal proceedings, subject to . .
Cited – Regina v South Tameside Magistrates’ Court, ex parte Rowland 1983
If after the defendant enters an unequivocal plea of guilty it becomes clear that the defendant did not appreciate the elements of the offence to which he was pleading guilty, then it may be appropriate to permit him to withdraw his plea. . .
Adjourned from – Revitt and others v Director of Public Prosecutions Admn 17-Jul-2006
Short adjournment. . .

Cited by:
Cited – Westminster City Council v Owadally and Another Admn 17-May-2017
Defendant must plea to charge, and not counsel
The defendants had, through their barrister, entered pleas of guilty, but the crown court had declared the convictions invalid because this had to have been done by the defendants personally, and remitted the cases and the confiscation proceedings . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.244861

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 disproportionate given the circumstances of the allegation. The allegations were some 15 years old, and the judge found that insufficient consideration had been given by the appellant to the position applied for.
Held: The appeal system within the Act related only to the accuracy of the information provided. It should be practice before proceedings to allow the claimant to make representations. In this case the respondent had applied the inapplicable criteria, and had not taken any representations. The judge had been able to quash the decision. He had however gone beyond that to grant declaratory and injunctive relief, and those were set aside.

Lord Neuberger MR, Wilson, Toulson LJJ
[2011] EWCA Civ 175, [2011] PTSR D41, [2011] 2 FLR 383, [2011] Fam Law 581
Bailii
European Convention on Human Rights 8, Police Act 1997
England and Wales
Citing:
Cited – 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 . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 11 November 2021; Ref: scu.430224

The Republic of Ireland v The United Kingdom: ECHR 18 Jan 1978

The UK lodged a derogation with the Court as regards its human rights obligations in Northern Ireland because of the need to control terroist activity. The Government of Ireland intervened. From August 1971 until December 1975 the UK authorities exercised a series of ‘extrajudicial’ powers of arrest, detention and internment in Northern Ireland. The case concerned the Irish Government’s complaint about the scope and implementation of those measures and in particular the practice of psychological interrogation techniques (wall standing, hooding, subjection to noise and deprivation of sleep, food and drink) during the preventive detention of those detained in connection with acts of terrorism.
Held: The IRA had for a number of years represented ‘a particularly far-reaching and acute danger for the territorial integrity of the United Kingdom, the institutions of the six counties and the lives of the province’s inhabitants’. However, the Court found the methods to have caused intense physical and mental suffering. The article 15 test was accordingly not discussed, but the Court made valuable observations about its role where the application of the article is challenged: ‘(a) The role of the Court. The limits on the Court’s powers of review are particularly apparent where Article 15 is concerned. It falls in the first place to each Contracting State, with its responsibility for ‘the life of [its] nation’, to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter, Article 15(1) leaves those authorities a wide margin of appreciation. Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the Commission, is responsible for ensuring the observance of the States’ engagements (Art. 19), is empowered to rule on whether the States have gone beyond the ‘extent strictly required by the exigencies’ of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision.’ Torture is a strong word. In human rights instruments only deliberate inhuman treatment causing very serious and cruel suffering ranks as torture. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.’
ECHR Judgment : Revision rejected : Third Section

G Balladore Pallieri P
5310/71, Series A no 25, p 65, [1978] ECHR 1, (1978) 2 EHRR 25, [2018] ECHR 247
Worldlii, Bailii, Bailii
European Convention on Human Rights 815
Human Rights
Cited by:
Cited – Regina v Secretary of State for the Home Department, ex parte Sivakumar HL 20-Mar-2003
The appellant sought asylum. He had fled Sri Lanka. He was a Tamil and feared torture if he returned. His application had been rejected because the consequences flowed from his suspected involvement in terrorism, and that was not a Convention . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Lorse and Others v The Netherlands ECHR 4-Feb-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 with regard to the first applicant ; No violation of Art. 3 with regard to the other applicants ; No violation of Art. 8 ; No violation of Art. 13 . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same HL 3-Nov-2005
The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day . .
Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
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 – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice

Leading Case

Updated: 11 November 2021; Ref: scu.164875

ZXC v Bloomberg Lp: QBD 23 Feb 2017

Investigation of claimant was properly disclosed

The claimant requested the removal of material naming him from the defendant’s website. Criminal investigations into a company with which he was associated were begun, but then concluded. In the interim, the article was published. The hearing had been in private and the claimant anonymised.
Held: The weight to be attached to the Defendant’s art 10 rights here comfortably outweighed the Claimant’s article 8 rights. In those circumstances, the claim based on Art 8 and the Claimant’s expectation of privacy failed. Moreover, the defence under section 32 was such that the Claimant could not show that he was likely to succeed in overcoming that defence: ‘the decision to refer to the Claimant in the article was taken after careful consideration of the relevant circumstances, including the public interest in the disclosure of the Claimants involvement. In my judgment, it is clear that the Defendant as data controller believed, and believed on reasonable grounds, that publication would be in the public interest.’
The fact that ERY proceeded from a concession meant it was only weak support for the existence of such an expectation, but rejected a submission by the defendant that there was a blanket rule against it – it was a fact sensitive question. He identified a number of features in that case (including the confidentiality of the document and the fact that it came into the hands of the defendant via an unauthorised leak) which led him to the conclusion that the claimant would reasonably have expected that the document: ‘would remain private to the law enforcement agency and the other party receiving it’

Garnham J
[2017] EWHC 328 (QB), [2017] EMLR 21
Bailii
Civil Procedure Rules 39.2, European Convention on Human Rights 6 8 10, Date Protection Act 1998 32
England and Wales
Citing:
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 by:
Cited – Richard v The British Broadcasting Corporation (BBC) and Another ChD 18-Jul-2018
Police suspect has outweighable Art 8 rights
Police (the second defendant) had searched the claimant’s home in his absence in the course of investigating allegations of historic sexual assault. The raid was filmed and broadcast widely by the first defendant. No charges were brought against the . .
See Also – ZXC v Bloomberg LP QBD 17-Apr-2019
Claim for misuse of private information. The central issue is whether the Claimant can have a reasonable expectation of privacy in information that relates to a criminal investigation into his activities. . .

Lists of cited by and citing cases may be incomplete.

Information, Human Rights, Media

Updated: 11 November 2021; Ref: scu.577510

English v Emery Reimbold and Strick Ltd; etc, (Practice Note): CA 30 Apr 2002

Judge’s Reasons Must Show How Reached

In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the decision in their case had been arrived at. Flannery preceded the Act. Reasons may be implicit from the finding itself, and in such cases more detailed reasons may not be necessary. The need varied from case to case. For costs orders, only in those cases where an order with neither reasons nor any obvious explanation was it likely to be appropriate to give permission to appeal for lack of reasons. if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. ‘Justice will not be done if it is not apparent to the parties why one has won and the other has lost’. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be stated and the manner in which he resolved them explained. It does require the judge to identify and record those matters which were critical to his decision.

Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Latham and Lady Justice Arden
Times 10-May-2002, Gazette 30-May-2002, [2002] EWCA Civ 605, [2002] 1 WLR 2409, [2002] 3 All ER 385, [2003] IRLR 710
Bailii
European Convention on Human Rights Art 6
England and Wales
Citing:
Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Cited – Eagil Trust Co Ltd v Pigott-Brown CA 1985
There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. When dealing with an application in chambers to strike out for want of prosecution a judge should give his reasons in . .

Cited by:
Cited – Budgen v Andrew Gardner Partnership CA 31-Jul-2002
The defendant firm of solicitors appealed an order for costs against it based upon a percentage calculation. They sought an issues based costs order.
Held: Where there was insufficient information upon which to calculate an issues based costs . .
Cited – Checkpoint Ltd v Strathclyde Pension Fund CA 6-Feb-2003
The tenants sought to challenge the arbitrator’s award setting the rent payable under the lease. They claimed that he had improperly refered to his own experience of the market, to support his decision, and this committed a serious irregularity . .
Cited – William Browning, Maureen Browning v Messrs Brachers (A Firm) QBD 15-May-2003
The claimants sought damages for professional negligence, in having failed to pursue a claim for professional negligence against a previous firm of solicitors who had acted for the claimant. . .
Cited – Merer v Fisher and Another CA 13-May-2003
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Logan v Commissioners of Customs and Excise CA 23-Jul-2003
The respondent had at the close of the claimant’s case submitted that it had no case to answer. The tribunal agreed and discharged the claim without hearing from the respondent. The employer appealed the EAT’s decision to allow her appeal.
Cited – Grant v Director of Public Prosecutions Admn 22-Jan-2003
The appellant had been convicted of failing to give a breath test, and of driving with excess alcohol. He had falsely claimed that he had had a drink in the five minutes before being asked to take the test, and said the officer should not have . .
Cited – Richardson and Orme v North Yorkshire County Council CA 19-Dec-2003
The claimants appealed against an order dismissing their application for a judicial review of the respondent’s grant of planning permission. They contended that a councillor with an interest in the matter had wrongfully not been excluded from the . .
Cited – Sykes and Another v Taylor-Rose and Another CA 27-Feb-2004
The appellants purchased a property from the respondents. The house had been the site of a partiularly horrendous murder in 1980, but the respondents did not disclose the fact.
Held: The doctrine of caveat emptor still had application. As . .
Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Cited – Richardson v Howie CA 13-Aug-2004
The claimant sought damages for assault. In the course of a tempestuous relationship, she said the respondent had physically assaulted her in Barbados. He was later convicted of soliciting her murder. She sought and was awarded aggravated damages, . .
Cited – Mathialagan, Regina (on the Application of) v London Borough of Southwark and Another CA 13-Dec-2004
Liability Orders were made against the appellant in respect of non-domestic rates in respect of two properties. The orders were made in the absence of the appellant or any representative. Application for judicial review was made to re-open the . .
Cited – Smithkline Beecham Plc and Another v Apotex Europe Ltd and others CA 16-Dec-2004
Following its earlier main judgment in the case, the court made use of the CPR to award costs on an appeal. The overall result had been that the patent was found to be valid but not infringed. There had been huge costs. Smithkline sought costs on an . .
Cited – Stephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .
Cited – Golobiewska v Commissioners of Customs and excise CA 6-May-2005
The owner of a motor vehicle which had been seized by Customs applied to have it restored.
Held: the 1994 Act placed the burden on the applicant to establish that she was entitled to the return of her car, but the standard of proof was the . .
Cited – Law Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
Cited – Baird v Thurrock Borough Council CA 7-Nov-2005
The defendant council appealed a finding of negligence after a dustbinman had been injured when he was struck by a wheelie bin. He had said that a malfunction in the mechanism loading the wheelie bin caused him to be hit by one.
Held: The . .
Cited – Fielden, Graham (Executors of Cunliffe deceased) v Cunliffe CA 6-Dec-2005
The will was executed anticipating the marriage to the respondent, leaving assets on discretionary trusts for the responent and various family members and others. She had come to work for the deceased as his housekeeper, but later they came to . .
Cited – Baxendale-Walker v The Law Society Admn 30-Mar-2006
The solicitor appealed being struck off. He had given a character reference in circumstances where he did not have justification for the assessment.
Held: ‘The appellant knew that Barclays Bank trusted him to provide a truthful reference. . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
Cited – Hicks Developments Ltd v Chaplin and others ChD 5-Feb-2007
The defendants had succeeded in an application before the Land Registry adjudicator for a strip of land adjoining their property to be registered in their name after a finding that they had successfully established a claim by adverse possession. The . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Cited – Bryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
Cited – EE and Brian Smith (1928) Ltd v Hodson and others CA 23-Nov-2007
The defendants appealed grant of an interim injunction to enforce restrictive employment covenants. The second defendant had sold his interest in the claimant company in 2001, but after his consultancy ended, he set up another business, the third . .
Cited – In re A (a Child) (Duty to seek reasons) CA 19-Sep-2007
Where counsel intended to file an appeal and in case of doubt, counsel should consider requesting the judge to amplify or clarfy the reasons for making his own decision before filing his appeal. . .
Cited – Wilson and Another v Burnett CA 24-Oct-2007
Insufficient Evidence of Lottery Contract
The defendant won a large prize at bingo. The claimants said they had a binding oral agreement to pool each others winnings. They now appealed dismissal of their claim.
Held: The evidence had in all material respects conflicted. The . .
Cited – Mubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
Cited – Phipps v General Medical Council CA 12-Apr-2006
Wall LJ considered the need for the Professional Conduct Committee (PCC) GMC to give clear reasons for its decisions against the background of human rights law, and concluded that the principles enunciated in English were of universal application . .
Cited – ZM v JM; Re M (children) (fact-finding hearing: burden of proof); In re M (a Child) (Non-accidental injury: Burden of proof) CA 19-Nov-2008
When a court considered which of two parents might be responsible for a non-accidental injury to their child, what the court cannot do is decide that one parent is the perpetrator but that the other parent cannot be excluded as the perpetrator. . .
Cited – Burns v Royal Mail Group Plc (No 2) (Formerly Consignia Plc), Humphrey EAT 14-Jan-2004
The hearing was an adjourned second hearing. The appeal on sex discrimination had been dismissed, and the balance of the claim for constructive unfair dismissal was adjourned. At that adjourned hearing the claimant now sought to re-open the claims . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Applied – Green v Half Moon Bay Hotel (Antigua and Barbuda) PC 2-Jun-2009
The claimant appealed on the basis that the appeal court had not given reasons for its decision rejecting his appeal.
Held: There were real grounds to doubt elements of the applicant’s version of events, but in essence the appeal had been . .
Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Sher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
Cited – Punch Pub Company Ltd v O’Neill EAT 23-Jul-2010
EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Procedural fairness/automatically unfair dismissal
The Employment Tribunal failed to consider the effect of S98A(2) of the Employment Rights Act . .
Cited – Hazelhurst and Others v Solicitors Regulation Authority Admn 11-Mar-2011
The claimants appealed against disciplinary orders. A member of staff had stolen substantial sums from client account. They had admitted breaches of the Accounts and Practice rules, but personally made good all losses. They said that the Solicitors . .
Cited – Potts v Densley and Another QBD 6-May-2011
potts_densleyQBD11
The claimant had been a shorthold tenant. The landlord had failed to secure the deposit as required, but offered to repay it after the determination of the tenancy. The claimant now appealed against a refusal of an award of three times the deposit. . .
Cited – J K Bansi v Alpha Flight Services EAT 3-Feb-2004
EAT Redundancy – Collective consultation and information. Serota QC J said: ‘In English v Emery Reimbold and Strick Ltd . . the Court of Appeal gave guidance as to the circumstances in which a Judge might be . .
Cited – In re T (A Child: contact) CA 24-Oct-2002
The court considered an appeal in care proceedings, where it was felt that the judge’s reasons for his findings were inadequately set out. Arden LJ pointed out that the principles in Emery Reimbold applied also in care proceedings, and set out . .
Cited – Adebowale v Peninsula Business Services Ltd EAT 20-Jan-2003
Burton J P said that the CA had ‘expressly encouraged Courts considering whether an appeal should proceed on grounds of alleged failure to make findings, or alleged absence of reasons, to consider referring the case back to the lower Court for . .
Cited – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
Cited – In re L and B (Children) CA 18-Jul-2012
In care proceedings, there had been protracted fact finding hearings. The judge had given a preliminary report as to her conclusions, but received a communication from counsel for the father requesting her to re-address certain aspects. She later . .
Cited – Sterlite Industries (India) Ltd v Bhatia EAT 27-Mar-2003
The respondent had been found to be unfairly dismissed. The appellants wished to appeal and sought disclosure of certain documents from the respondent’s solicitors. They now appealed against that refusal.
Held: The appeal succeeded. The . .
Cited – The Attorney General for Northern Ireland v Crawford and Another ChNI 4-May-2016
The AG sought leave to appeal against a decision by the tribunal for the removal of a trustee of a police charity.
Held: Permission was given. The decision of the tribunal was open to proper criticism. The appeal raised several important . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Costs

Leading Case

Updated: 11 November 2021; Ref: scu.170288

Doctor A and Others v Ward and Another: FD 8 Jan 2010

Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made restricting further identification. The professionals feared that their readiness to act as experts would be reduced if their identities were made public.
Held: The stays were lifted. The case raised issues as to the extent of information restricted under section 12 of the 1960 Act. Not all information about the child is within the scope of section 12, only information ‘relating to’ the proceedings. Moreover it is equally clear that information does not ‘relate to’ the proceedings merely because it is information communicated to the court or contained in documents put before the court.
However,’the fact that a document is for some other reason already confidential no more brings it within the scope of section 12 merely because it is lodged with the court or annexed to a witness statement or report than would be so with a document lacking the quality of intrinsic confidentiality. What brings a document within the scope of section 12 depends not on whether it is otherwise or already confidential but whether it is ‘information relating to [the] proceedings.’ ‘ and
‘one has to distinguish between, on the one hand, the mere publication of a fact (fact X) and, on the other hand, the publication of fact X in the context of an account of the proceedings, or the publication of the fact (fact Y) that fact X was referred to in the proceedings or in documents filed in the proceedings. The publication of fact X may not be a breach of section 12; the publication of fact Y will be a breach of section 12 even if the publication of fact X alone is not.’
Since no order had been made, decisions about what was in the children’s best interests remained primarily with the parents.
As to the risk to the expert witnesses, Munby J said: ‘neither the risks of targeting, harassment and vilification (which I accept are made out to a certain extent) nor the consequential risks of a flight of experts from child protection work (which again I accept are made out to a certain, though I think more limited, extent) are such as to the demonstrate the ‘pressing need’ which alone could begin to counter-balance what in my judgment are the powerful arguments, the very powerful arguments, founded in the public interest, for denying expert witnesses anonymity.’

Munby J
[2010] EWHC 16 (Fam)
Bailii
Administration of Justice Act 1960 12(1)(a), European Convention on Human Rights 8
England and Wales
Citing:
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 . .
See also – British Broadcasting Corporation v CAFCASS Legal and others FD 30-Mar-2007
Parents of a child had resisted care proceedings, and now wished the BBC to be able to make a TV programme about their case. They applied to the court for the judgment to be released. Applications were also made to have a police officer’s and . .
Cited – Clayton v Clayton CA 27-Jun-2006
The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified.
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
See also – N (A Child), Re; A v G (Family Proceedings: Disclosure) FD 8-Jul-2009
Application in respect of the proposed disclosure to the General Medical Council (GMC) of an expert report produced in the course of and for the purposes of proceedings in relation to a child. . .
Cited – In Re G (A Minor) (Social Worker: Disclosure) CA 14-Nov-1995
A social worker may relate oral admissions made by parents to him to the police without first getting a court’s permission.
Butler-Sloss LJ said: ‘I would on balance and in the absence of argument give the more restrictive interpretation to r . .
Cited – In re Martindale 1894
Miss Martindale was made a ward of court on 11 April 1894. Knowing that she was a ward of court a young poet and novelist named Ford Madox Hueffer – later known as Ford Madox Ford – married her in May 1894. On 1 June 1894 North J granted an . .
Cited – In re F (otherwise A ) (A Minor) (Publication of Information) CA 1977
An allegation of contempt was made in proceedings related to the publication by a newspaper of extracts from a report by a social worker and a report by the Official Solicitor, both prepared after the commencement and for the purpose of the wardship . .
Cited – In re S (Minors) (Wardship: Police Investigation); Re S (Minors) (Wardship: Disclosure of Material) FD 1987
Local authority case records and a verbatim extract from the case records which had been exhibited to an affidavit from a social worker had been disclosed.
Held: Booth J asked as to the case records: ‘whether the words in the section . .
Cited – In Re W (Minors) (Social Worker: Disclosure); Re W (Disclosure to Police) CA 26-Mar-1998
A social worker may disclose admissions made during investigation into child abuse, to the police without the court’s permission, where the information had not been incorporated in the welfare report filed at the court. The rule (against disclosure) . .
Cited – Re M (Disclosure: Children and Family Reporter) CA 31-Jul-2002
The question arose as to whether a Cafcass officer acting as a children and family reporter (CFR) in private law proceedings required the permission of the court before referring to the local authority’s social services department for further . .
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 – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Brown v Matthews CA 1990
There is a public interest in encouraging the frank and ready co-operation from people as diverse as doctors, school teachers, neighbours, the child in question, the parents themselves, and other close relations, including other children in the same . .
Cited – Rochdale Metropolitan Borough Council v A 1991
Ten children were taken into care amid allegations of ritual satanic sex abuse.
Held: the allegations were not proved. All but four of the children were returned home. Injunctions were granted to protect the identify of the children and of the . .
Cited – Regina v Felixstowe Justices ex parte Leigh CA 1987
The court considered the importance of the role played by the media in attending and reporting court proceedings. Watkins LJ said: ‘The role of the journalist and his importance for the public interest in the administration of justice has been . .
Cited – Medway Council v G and others FD 18-Jul-2008
The court considered the extent of publicity for a case where the local authority was to be criticised. . .
Cited – Norfolk County Council v Webster and others FD 17-Nov-2006
There had been care proceedings following allegations of physical child abuse. There had been a residential assessment. The professionals accepted the parents’ commitment to their son, but also found that they were unreliable. It was recommended . .
Cited – In re Manda CA 1993
A wardship court can extend its protection beyond the age of majority where a public interest was identified that required it. Whilst those who give evidence in child proceedings can normally assume that their evidence will remain confidential, they . .
Cited – Moser v Austria ECHR 2006
The applicant’s son had been taken into care by a public authority. The family complained that the proceedings had been held in secret.
Held: There had been a breach of Article 6, inter alia on the ground that the hearing had not been in . .
Cited – In re W (Wardship: Discharge: Publicity) CA 1995
Four wards of court aged between nine and 14 had given an interview to a newspaper reporter, who plainly knew that they were wards of court, in circumstances which clearly troubled both the Official Solicitor, their guardian ad litem, who . .
Cited – Re X; Barnet London Borough Council v Y and Z FD 2006
The judge refused to endorse a local authority’s care plan, and invited the local authority to reconsider it. He criticised the local authority for taking an important decision in pending care proceedings without any warning to the guardian and . .
Cited – In Re C (A Minor) (Care Proceedings: Disclosure); Re EC (Disclosure of Material) CA 22-Oct-1996
Guidance was to the courts on disclosure of care proceedings statements etc to police. But for section 12 it would have been contempt of court to have disclosed to the police matters before the children’s court. . .
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
Cited – Re L (Care: Assessment: Fair Trial) FD 2002
The court emphasised the need, in the interests not merely of the parent but also of the child, of a transparently fair and open procedure at all stages of the care process, including the making of documents openly available to parents.
Munby . .
Cited – Re X (Disclosure of Information) FD 2001
There cannot be an expectation that expert evidence given in a children’s court will always stay confidential. The various aspects of confidentiality will have greater or lesser weight on the facts of each case. Munby J: ‘Wrapped up in this concept . .

Cited by:
See also – Doctor A and Others v Ward and Another FD 9-Feb-2010
. .

Lists of cited by and citing cases may be incomplete.

Media, Children, Human Rights

Updated: 11 November 2021; Ref: scu.396650

Arscott and others v Coal Authority and Another: CA 13 Jul 2004

The defendant had deposited coal wastes. When the river Taff flooded, the spoil heaps diverted the floods to damage the claimants’ homes. They appealed refusal of their claims in nuisance. The judge applied the common enemy rule: ‘an owner or occupier of land is entitled to use or develop his land so as to prevent flood waters coming on to his land. If in times of flood waters which would have entered his land in consequence damage another’s land – that does not provide a cause of action in nuisance.’ The cases established ‘a bias in favour of natural user, subject to its being no more than reasonably enjoyed; a bias (effectively a conclusive rule) against non-natural user where that involves the escape of something noxious onto a neighbour’s land; a bias against the harbouring of a danger, a hazard, on one’s own land whether the hazard is natural or man-made. And in no case will there be liability without reasonable foreseeability of damage. ‘ and ‘You are entitled to protect yourself against the common enemy’s incursions; but if the incursion upon your land has already happened or is about to happen, you may not export it to your neighbour. ‘ The defendant was not liable at common law. The claim pre-dated Human Rights law, and the common enemy rule, subject perhaps to exceptional instances, is in principle inoffensive to Article 8 and Article 1 of the First Protocol.

Laws LJ
[2004] EWCA Civ 892, [2005] Env LR6
Bailii
European Convention on Human Rights P1 A1 A8
England and Wales
Citing:
Cited – Sedleigh-Denfield v O’Callaghan HL 24-Jun-1940
Occupier Responsible for Nuisance in adopting it
A trespasser laid a drain along a ditch on the defendant’s land. Later the defendants came to use the drain themselves. A grate was misplaced by them so that in a heavy rainstorm, it became clogged with leaves, and water flowed over into the . .
Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – Leakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
Cited – Bamford v Turnley 2-Jul-1862
The defendant burned bricks on his land, causing a nuisance to his neighbours.
Held: It was no answer to an action for damages that he selected a proper place within his land for an activity which would interfere with a neighbour’s enjoyment . .
Cited – Trafford v Rex CEC 1832
Landowners next to the Mersey had raised the banks to prevent floodwaters coming on to their land. This raised the water level threatening a canal. The landowners appealed a conviction.
Held: A guilty verdict of guilty would only be . .
Cited – Farquharson v Farquharson 1741
‘It was found lawful for one to build a fence upon his own ground, by the side of a river, to prevent damage to his ground by the overflow of the river, though thereby a damage should happen to his neighbour by throwing the whole overflow in time of . .
Cited – Rex v The Commissioners of Sewers for the Levels of Pagham 1828
The court considered responsibility for the inroads of the sea. The Commissioners erected groynes and other works to defend the stretch of coast for which they were responsible against the sea’s encroachment. But the consequence was that the sea . .
Cited – Whalley v Lancs and Yorks Railway Co 1884
After heavy rain, water accumulated against the defendants’ railway embankment, endangering it. The defendants cut trenches in it to allow the water flowed through, where it then went on to the land of the plaintiff, on the far side of the . .
Cited – Rex v Trafford KBD 1831
The river Mersey and an associated brook overflowed their banks in wet weather at the place in question, and the waters went north and west over adjoining lands, at length flowing back into the Mersey. The affected landowners raised banks (referred . .
Cited – Hurdman v North Eastern Railway Co 1878
The defendants raised their land, so that the rain collected and penetrated an adjoining wall and ran into the plaintiff’s land, causing substantial damage.
Held: The heap or mound erected on the defendants’ land had to be considered as ‘an . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .

Cited by:
Cited – Anthony and others v The Coal Authority QBD 28-Jul-2005
The claimants lived adjacent to an old coal tip, which caught fire spontaneously and burned for three years. They claimed in nuisance. The defendant argued that the risk of spontaneous ombustion was not reasonable, and that the use was safe.
Cited – Lambert and Others v Barratt Homes Ltd (Manchester Division) and Another QBD 17-Feb-2009
The claimant sought damages in nuisance and negligence saying that in constructing a new housing estate, they had altered the land in such a way as to lead to the repeated flooding of their home.
Held: Both the developer and the council were . .
Cited – Lambert and Others v Barratt Homes Ltd and Another CA 16-Jun-2010
The claimants had bought houses from the first defendants, who in turn had bought the land from Rochdale, the second defendants. In preparing the land for construction the first defendants were said to have negligently filled in a drainage culvert . .
Cited – Lambert and Others v Barratt Homes Ltd and Another CA 16-Jun-2010
The claimants had bought houses from the first defendants, who in turn had bought the land from Rochdale, the second defendants. In preparing the land for construction the first defendants were said to have negligently filled in a drainage culvert . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.199336