Tag: Human Rights

Cadogan and others v 26 Cadogan Square Ltd, Howard de Walden Estates Limited v Aggio and others: HL 25 Jun 2008

In each case all or part of a building was let by a head-lease and then as self-contained units under sub-leases. The head lessees had served notices under the 1993 Act requiring new leases. The freeholder denied that they were qualifying tenants, either because there were a number of flats, or because the lease included other property, commercial premises.
Held: The tenants’ appeals succeeded. Section 101(3) referred to a building which include the flat, which suggests that the presence of other elements did not exclude the apartment, and ‘the expression ‘lease’ is apt to include a term of years granted by the freeholder or by someone who himself holds a lease from the freeholder whether directly or not. ‘ Both appellants were qualifying tenants. Nor was it correct to think that Parliament would have wished to exclude intermediate landlords from having the right to apply for a new lease. Though a renewal of part only of a lease of a property might cause some difficulties it was not an absurd result.

Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Neuberger of Abbotsbury
[2008] UKHL 44, [2008] 3 WLR 244, [2009] 1 AC 39, [2008] RVR 236, [2008] L and TR 25, [2008] NPC 75, [2008] 34 EG 94, [2008] 2 EGLR 57, [2008] 2 P and CR 19, [2008] 26 EG 116, [2009] HLR 8, [2008] 4 All ER 382
Bailii, HL
Leasehold Reform, Housing and Urban Development Act 1993 46 49(1) 56(1) 57, Commonhold and Leasehold Reform Act 2002 130
England and Wales
Citing:
Appeal from – Howard De Walden Estates Ltd and Another v Aggio and others; Earl Cadogan and others v 26 Cadogan Square Ltd CA 24-May-2007
Note: ‘In accordance with the well established principles of stare decisis the decisions of a higher court are binding on judges sitting in a lower court. This principle serves the interests of legal certainty: see Broome v. Cassell and Co [1972] AC . .
Cited – Maurice and Others v Hollow-Ware Products Ltd ChD 15-Mar-2005
The tenants occupied the building under subleases created out of a head lease which also included other land. They served a notice requiring new leases. The landlord objected that this envisaged not the grant of a new lease in substitution of the . .
Cited – Majorstake Ltd v Curtis CA 8-Aug-2006
The tenant had given notice under section 42 requiring a new lease. The landlord said it wished to redevelop the apartment by combining it with a neighbouring one. The issue was as to what constituted ‘any premises in which [Flat 77] is contained’ . .
Cited – Cadogan v McGirk CA 25-Apr-1996
The court considered whether the 1993 Act should be construed as expropriatory legislation and therefore was to be read strictly.
Held: The Court rejected the submission that the relevant provisions must be strictly construed because the 1993 . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Cadogan Estates Limited v Morris CA 4-Nov-1998
The tenant had served a notice to purchase the freehold of the premises at pounds 100.00, a formal nominal figure. The landlord claimed that the notice was invalid.
Held: The process was one of compulsory purchase. ‘The tenant is required to . .
Cited – 9 Cornwall Crescent London Ltd v Kensington and Chelsea CA 22-Mar-2005
The tenants offered to purchase the landlord’s freehold for andpound;210. The landlord made a counter offer to sell the freehold at andpound;130,000. The tenants argued that just as their offer had to be realistic, so the landlord’s had to be . .
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 by:
Cited – Ackerman and Another v Lay and others (Portman Estate Nominees (One) Ltd) CA 16-Dec-2008
The landlords resisted a claim for enfranchisement saying that the appellants were no longer tenants under section 42 of the 1993 Act, the lease having expired. The property was made up of five flats, and was not itself a house.
Held: The . .
Cited – Day and Another v Hosebay Ltd; Lexgorge Ltd v Howard de Walden Estates Ltd etc CA 1-Jul-2010
Properties had been built as substantial single dwellings. Later they had been converted into separate dwellings and let accordingly. The tenants sought to acquire the freeholds under the 1967 Act. Though required by the lease to use the properties . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Human Rights

Updated: 31 October 2021; Ref: scu.270384

Secretary of State for The Home Department v ZAT and Others (Syria): CA 2 Aug 2016

Entry from Calais for Asylum Applicants

The Secretary of State appealed against orders granting entrance to seven respondents ordering that they be admitted to the UK from Calais with a view to determining their refugee status.
Held: The tribunal had failed to apply the correct test.

Moore-Bick, Longmore, Beatson LJJ
[2016] EWCA Civ 810, C2/2016/071
Bailii, Judiciary
Europran Convention on Human Rights 8
England and Wales

Immigration, News, Human Rights

Updated: 31 October 2021; Ref: scu.567882

Velinov v ‘The Former Yugoslav Republic Of Macedonia’: ECHR 19 Sep 2013

Article 5-1-b
Non-compliance with court order
Deprivation of liberty to enforce fine that had already been paid: violation
Facts – In 2000 the applicant was convicted of a minor offence and ordered to pay a fine within fifteen days of the judgment becoming final. He was informed that if he did not pay in time the fine would be converted into a prison sentence. In November 2001 the trial court ordered the applicant to pay the fine and appear in court in order to submit proof of payment. In February 2002 the fine was converted into a two-day prison sentence. Six days later the applicant paid the fine but did not produce evidence of payment to the trial court. In 28 October 2002 he was imprisoned before being released the next day after producing the requisite evidence.
Law – Article 5 – 1 (b): The Court had to examine two issues: whether the fact that the fine was paid after it had been converted into a prison sentence had made the applicant’s subsequent imprisonment unlawful and whether the applicant’s failure to notify the court that he had paid the fine had justified his imprisonment.
As to the first issue, unlike the position with respect to partial payment of a fine, there were no rules governing the position where a fine, in respect of which a prison sentence had been imposed in default of payment, was subsequently paid in full. Under the legislation governing partial payment, the unpaid part of the fine would be converted into a prison sentence but the sentence would end if the fine was then paid. There was no reason why this rule could not have been relied on in the applicant’s case, as it was evident from the release order that he was released on the basis of evidence of payment. In these circumstances, the basis for the applicant’s detention under Article 5 – 1 (b) of the Convention had ceased to exist as soon as he complied with the payment order.
As to the second issue, the applicant had not notified the trial court of the payment, despite being ordered to do so. Noting that failure, the trial court had concluded that no responsibility could attach to the State for the applicant’s subsequent arrest and detention. However, there was no statutory provision requiring the applicant to notify the court of the payment. Furthermore, he was arrested and imprisoned over eight months after the detention order was issued and he had paid the fine, but the Ministry of Finance had not informed the trial court of the payment. The applicant’s failure to notify the trial court that he had paid the fine could not release the respondent State from the obligation to have in place an efficient system for recording the payment of court fines. The decision-making process in matters where a person’s liberty was at stake should have taken into account all the relevant circumstances of the case. The importance of the applicant’s right to liberty required the respondent State to take all necessary measures in order to avoid his liberty being unduly restricted. In view of the foregoing, the applicant’s detention had been contrary to Article 5 – 1 (b) of the Convention.
Conclusion: violation (unanimously).

16880/08 – Legal Summary, [2013] ECHR 960
Bailii
European Convention on Human Rights 5(1)(b)
Human Rights

Human Rights

Leading Case

Updated: 31 October 2021; Ref: scu.516479

Runa Begum v London Borough of Tower Hamlets (First Secretary of State intervening): HL 13 Feb 2003

The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an appeal to the County Court on a point of law.
Held: The decision was one which did engage the applicant’s human rights. The officer was not an independent tribunal, but his decision was of the nature recognised in the jurisprudence as administrative, being areas of law considered regulatory and welfare schemes in which decision making was by custom delegated to administrative officers, and such decisions typically did not give rise to a right of appeal on the facts. The appeal on law was adequate.

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Millett, Lord Walker
[2003] UKHL 5, [2003] 1 All ER 739, Gazette 03-Apr-2003, [2003] 2 WLR 388, [2003] 2 AC 430, [2003] ACD 41, [2003] NPC 21, [2003] HRLR 16, [2003] HLR 32, [2003] UKHRR 419, [2003] BLGR 205, 14 BHRC 400, [2003] Hous LR 20
House of Lords, Bailii, Bailii
European Convention on Human Rights 6.1, Housing Act 1996 204, Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 (1996 No 3205, Allocation of Homelessness Functions (review Procedures) Regulations 1999 (1999 No 71)
England and Wales
Citing:
Cited – Bryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
Appeal from – London Borough of Tower Hamlets v Runa Begum CA 6-Mar-2002
The applicant had applied for rehousing as a homeless person. She was offered interim accommodation but refused it. Her case was reviewed, and her reasons rejected. She claimed the procedure was unfair, in that the authority was looking at decisions . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – London Borough of Newham v Adan CA 14-Dec-2001
The applicant was a Dutch national. She appealed for housing as a homeless person. The local authority, after review found her not to have a settled intention to stay in England. She appealed, to the County Court, and succeeded, and the Authority . .
Cited – Kingsley v The United Kingdom (No 2) ECHR 28-May-2002
The finding that a party had been denied a fair trial may of itself be sufficient compensation. The applicant had been excluded from management of licensed casinos. The appeal board had been found to have given the appearance of bias against him. . .
Cited – The Secretary of State for Health, Dorset County Council v The Personal Representative of Christopher Beeson CA 18-Dec-2002
The deceased had been adjudged by his local authority to have deprived himself of his house under the Regulations. Complaint was made that the procedure did not allow an appeal and therefore deprived him of his rights under article 6.
Held: . .
Cited – Kaplan v United Kingdom ECHR 14-Dec-1978
(Admissibility) The Secretary of State had, after preliminary procedures, served notices on an insurance company disallowing it from writing any new business, because its managing director the applicant, had been found not to be a fit and proper . .

Cited by:
Cited – Dyson Limited v The Registrar of Trade Marks ChD 15-May-2003
Applications for trade marks on behalf of the claimant had been rejected. Acquired distinctiveness was a significant issue, and the question of whether the appeal was a review or a rehearing was significant. In this appeal, the parties had given . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Secretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
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 – Feld, Lord Mayor and Citizens of the City of Westminster v London Borough of Barnet, Lord Mayor and Citizens of the City of Westminster CA 18-Oct-2004
The applicants sought housing as homeless people. After the refusal of their applications, they sought a review, and in due course a second review. That second review was conducted by the same officer who had conducted the first. The appellant . .
Cited – Hall v London Borough of Wandsworth CA 17-Dec-2004
The applicants appealed refusal of their applications for housing having priority housing need being vulnerable because of their mental illness. They said that the original decisions had been reviewed, and that on review deficiencies had been . .
Cited – Kehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
Cited – Cramp v Hastings Borough Council CA 29-Jul-2005
Cases challenged successful appeals by applicants for housing for homelessness, where a county court had ordered a second review of the application. . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
Cited – MB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
Cited – Malik, Regina (on the Application of) v Waltham Forest PCT and Secretary of State for Health Admn 17-Mar-2006
The doctor had been suspended on full pay whilst allegations against him were investigated. He claimed that the suspension infringed his human rights and that his licence to practice was a possession.
Held: At the disciplinary proceedings: . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Cited – F v Birmingham City Council CA 2-Nov-2006
The applicant sought housing as a homeless person with her children. The authority found her in priority need, but intentionally homeless. Her appeal against the adverse review failed, and she appealed again. She had given up a council flat and had . .
Cited – Ali v Birmingham City Council CA 7-Nov-2008
The Council said that it had discharged its duty to house the claimants after they had refused an offer of accommodation, and that decision had been reviewed. The claimant denied receiving a notice under the procedure. The court was asked whether . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health and Another HL 21-Jan-2009
The claimants had been provisionally listed as ‘people considered unsuitable to work with vulnerable adults’ which meant that they could no longer work, but they said they were given no effective and speedy opportunity to object to the listing. . .
Cited – Heald and Others v London Borough of Brent CA 20-Aug-2009
The court considered whether it was lawful for a local authority to outsource the decision making on homelessness reviews. The appellants said that it could not be contracted out, and that the agent employed lacked the necessary independence and was . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – G, Regina (on The Application of) v X School and Others CA 20-Jan-2010
The claimant was a teaching assistant. A complaint had been made that he had kissed a boy having work experience at the school, but it had been decided that no criminal prosecution would follow. He sought judicial review of the school’s decision to . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Cart, Regina (on The Application of) v The Upper Tribunal and Others CA 23-Jul-2010
The claimant had sought and been refused judicial review of a decision of the SIAC Upper Tribunal. The Upper Tribunals were designated as courts of superior record, and the court at first instance had said that SIACs specialist procedures and . .
Cited – Bubb v London Borough of Wandsworth CA 9-Nov-2011
The appellant had sought housing assistance. She had been offered accomodation but refused it as unreasonable. The authority declined further assistance. She now appealed against the refusal of the county court judge to set aside the decision . .
Cited – Bubb v London Borough of Wandsworth CA 9-Nov-2011
The appellant had sought housing assistance. She had been offered accomodation but refused it as unreasonable. The authority declined further assistance. She now appealed against the refusal of the county court judge to set aside the decision . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Cited – Hotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .

Lists of cited by and citing cases may be incomplete.

Housing, Human Rights, Administrative, Local Government

Leading Case

Updated: 31 October 2021; Ref: scu.179047

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 were Iraqi nationals, applied for asylum in Sweden after fleeing their country of origin because, as Christians living in a predominantly Muslim neighbourhood in Baghdad, they feared persecution. They stated that they had been subjected to threats and demands for money from masked men and that an attempt had been made to kidnap a member of their family when they had been unable to pay the sum demanded. The Swedish Migration Board rejected their applications and that decision was upheld by the Migration Court on the grounds that the evidence did not suggest that there was an individualised threat against the applicants upon return.
Law – Article 3: While the international reports on Iraq attested to a continuing difficult situation, including indiscriminate and deadly attacks by violent groups, and discrimination and heavy-handed treatment by the authorities, it appeared that the overall situation was slowly improving. Indeed, the applicants did not claim that, by itself, the general situation in Iraq precluded their return; instead, it was that situation combined with the fact that they were Christians that put them at real risk of being subjected to prohibited treatment. However, while noting that Christians formed a vulnerable minority that had been subjected to escalating and targeted attacks in the southern and central parts of Iraq, the Court noted that an internal relocation alternative was available in the Kurdistan Region. According to international sources this was a relatively safe area in which large numbers of Christians had found refuge and where their rights were generally considered to be respected.
The Court reiterated that as a precondition to relying on an internal flight or relocation alternative, certain guarantees had to be in place: persons due to be expelled had to be able to travel to the area concerned, gain admittance and settle there, particularly if in the absence of such guarantees there was a possibility of their ending up in a part of the country of origin where there was a real risk of ill-treatment. As regards entry to the Kurdistan Region, difficulties that had been faced by some at the checkpoints did not seem to be relevant for Christians, who, it appeared, were given preferential treatment. There was also evidence to suggest that no-one was required to have a sponsor, whether for entry or for continued residence. While various sources had attested that people relocating to the Kurdistan Region could face difficulties, for instance, in finding proper jobs and housing, the evidence before the Court suggested that there were jobs available and that settlers had access to health care and to financial and other support from the UNHCR and local authorities. In any event, there was no indication that the general living conditions in the region for Christian settlers would be unreasonable or in any way amount to treatment prohibited by Article 3. Nor was there a real risk of their ending up in other parts of Iraq. Relocation to the Kurdistan Region was thus a viable alternative for a Christian fearing persecution or ill-treatment in other parts of Iraq. Lastly, there was nothing in the applicants’ personal circumstances to indicate that they would be at risk in the Kurdistan Region, especially bearing in mind that the incidents to which they had been subjected had all occurred in Baghdad.
Conclusion: deportation would not constitute a violation (five votes to two).
(See also, on the question of internal flight alternatives: Salah Sheekh v. the Netherlands, no. 1948/04, 11 January 2007, Information Note no. 93; Sufi and Elmi v. the United Kingdom, no. 8319/07, 28 June 2011, Information Note no. 142; and two judgments – D.N.M. v. Sweden, no. 28379/11, and S.A. v. Sweden, no. 66523/10, both delivered on the same day as the instant case of M.Y.H. and Others v. Sweden – in which the applicants alleged that they would be at risk of honour-related crimes if deported to Iraq. In both cases, the Court found that although the evidence indicated that the applicants might not receive effective protection from the authorities, as honour killings were often committed with impunity in Iraq, and although it was unclear whether relocation in the Kurdistan Region was a viable option for persons such as the applicants who were Sunni Muslims, it would nevertheless be possible, on the facts, for them to relocate elsewhere in Iraq where they would not be in danger of persecution from the families and clans who had threatened them. Lastly, for another case on the risk of honour-related crime in the country of destination, see N. v. Sweden, no. 23505/09, 20 July 2010, Information Note no. 132)

50859/10 – Legal Summary, [2013] ECHR 736
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Myh And Others v Sweden ECHR 27-Jun-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 31 October 2021; Ref: scu.514306

Kirk Session of Sandown Free Presbyterian Church, Re Judicial Review: QBNI 22 Mar 2011

Ban on Gay Condemnation was Infringement

The church claimant was prohibited by the ASA from publishing a one page advert in a national newspaper condemning homosexuality. As well as stating that ‘the act of sodomy is a grave offence’ and ‘an abomination’, the banned advert had encouraged people to peacefully protest at a forthcoming ‘Gay Pride’ parade.
Held: The ban was disproportionate under Article 10(2) because of the importance of freedom of expression: ‘The applicant’s religious views and the biblical scripture which underpins those views no doubt cause offence, even serious offence, to those of a certain sexual orientation. Likewise, the practice of homosexuality may have a similar effect on those of a particular religious faith. But Art 10 protects expressive rights which offend shock or disturb… the respondent has failed to convincingly establish the necessity for such restriction which, in my view, disproportionately interferes with the applicant’s freedom of expression. In making this assessment I have taken into account the very particular context in which the advertisement was placed, the fact that the advertisement did not condone and was not likely to provoke violence, contained no exhortation to other improper or illegal activity, constituted a genuine attempt to stand up for their religious beliefs and to encourage others to similarly bear witness and did so by citing well known portions of scripture which underpinned their religious faith and their call to bear witness…’

Treacy J
[2011] NIQB 26, [2011] NI 242
Bailii
European Convention on Human Rights 10
Northern Ireland
Citing:
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.

Human Rights, Media

Leading Case

Updated: 31 October 2021; Ref: scu.440639

Jordan v United Kingdom; McKerr v United Kingdom; similar: ECHR 4 May 2001

Proper Investigation of Deaths with Army or Police

Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the circumstances of the deaths had not been subject to cross examination.
Held: The right to life is the most fundamental of human rights, and no derogation is to be allowed outside times of war. Where the circumstances of a death are exclusively within the power of the authorities, the burden of proof could be regarded as falling on the authorities. The right could be infringed by a failure to investigate such deaths properly. The inadequacies were such as to lead the court to conclude that that the right to life had been infringed. ‘there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.’

Times 18-May-2001, 24746/94, 37715/97, 30054/96, [2001] 11 BHRC 1, [2001] 37 EHRR 52, 28883/95, (2002) 34 EHRR 20, [2001] ECHR 323, [2001] ECHR 324, [2001] ECHR 325, [2001] ECHR 327, [2001] ECHR 328, [2001] ECHR 329, [2001] ECHR 330
Worldlii, Worldlii, Worldlii, Bailii, Bailii, Bailii, Bailii
European Convention on Human Rights 2
Human Rights
Citing:
See also – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .

Cited by:
Cited – Regina (Amin) v Secretary of State for the Home Department QBD 5-Oct-2001
An Asian youth was placed in a cell with another who was well known to be violent and racist. He was bludgeoned to death. The family sought a public investigation into how he came to be placed in such a position. An investigation had been refused by . .
Cited – Khan, Regina (on the Application of) v Secretary of State for Health CA 10-Oct-2003
The claimant’s child had died as a result of negligence in hospital. The parents had been told the result of police investigation and decision not to prosecute, and the hospital’s own investigation, but had not been sufficiently involved. There . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Regina (Wright) v Secretary of State for the Home Department Admn 2001
A serving prisoner suffered a severe asthmatic attack in his cell and died. An inquest was held at which the family of the deceased were present, but unrepresented for want of legal aid. There was no inquiry into the quality of the medical treatment . .
See Also – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department Admn 28-Apr-2005
D was undergoing trial for offences and was held in prison. He self-harmed repeatedly, and was recorded to require extra vigilance. He attempted to hang himself. Prison staff saved his life, but he was left paraplegic, and was then detained under . .
Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department (Inquest Intervening) CA 28-Feb-2006
The respondent appealed from orders made as to the conduct of an investigation into an attempted suicide in prison. The judge had severely criticised the appellant’s treatment of the case.
Held: The appeal failed. The court recited the . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Smith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Morrison v The Independent Police Complaints Commission and Others Admn 26-Oct-2009
The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human . .
See Also – McKerr v United Kingdom; Action of the Security Forces in Northern Ireland ECHR 17-Apr-2009
. .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Tyrrell v HM Senior Coroner County Durham and Darlington and Another Admn 26-Jul-2016
The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Coroners, Armed Forces

Leading Case

Updated: 31 October 2021; Ref: scu.166103

Radu v Germany: ECHR 16 May 2013

20084/07 – Chamber Judgment, [2013] ECHR 438
Bailii
European Convention on Human Rights
Human Rights
Citing:
Summary – 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 . .
See Also – Radu v Germany ECHR 3-Jul-2012
. .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.509290

Maksymenko and Gerasymenko v Ukraine: ECHR 16 May 2013

49317/07 – Chamber Judgment, [2013] ECHR 439
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Full Judgebt – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.509289

Mrs P v Rochdale Borough Council and Another: CoP 18 Jul 2016

Final hearing in relation to matters concerning the deprivation of liberty of Mrs P and her care arrangements. In this particular case the issues of her welfare and residence are inextricably linked with the appointment of a deputy that is managing her property and finances.
Matharu DJ
[2016] EWCOP B1
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.568154

Khamtokhu And Aksenchik v Russia: ECHR 24 Jan 2017

60367/08 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber)), [2017] ECHR 84
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Stott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.573661

Regina v Ashworth Special Hospital Authority and Another, ex parte N: QBD 26 Jun 2001

A secure hospital charged with caring for patients considered to be at high risk, imposed rules for monitoring 100 per cent of the telephone calls of high risk prisoners, and a random ten per cent of lower risk patients. Privileged calls were not intercepted. It was held that although this was an infringement of the right to respect for his correspondence, the steps were taken balanced against an understanding of the high risks of escape and other damage which might be suffered. The interceptions took place in accordance with policies approved by the Home Secretary. The interceptions were lawful.
Times 26-Jun-2001
Human Rights Act 1998
England and Wales

Updated: 26 October 2021; Ref: scu.88371

Maumousseau and Washington v France: ECHR 6 Dec 2007

The child’s mother (M) complained that the effective operation of the Hague Convention, in ordering the return of the applicant’s daughter to her habitual residence in the United States, M having taken her to France for the holidays and refused to return her afterwards, was in breach of their article 8 rights.
Held: The claim failed. The positive obligation to reunite parents with their children had to be interpreted in the light of the requirements of the Hague Convention and the UNCRC. In deciding whether the interference was necessary in a democratic society, the decisive issue was ‘whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – was struck’. Several aspects were involved in the primary consideration of the best interests of the child: for example, ‘to guarantee that the child develops in a sound environment and that a parent cannot take measures that would harm its health and development; secondly, to maintain its ties with its family, except in cases where the family has proved particularly unfit’. The concept of the child’s ‘best interests’ was also a primary consideration in the context of the Hague Convention procedures. The Court accepted entirely the philosophy underlying the Hague Convention. It did not agree that the domestic courts’ interpretation of article 13b was necessarily incompatible with the notion of the child’s best interests. There was ‘no automatic or mechanical application of a child’s return’ once the Hague Convention was invoked, because of the exceptions ‘based on objective considerations concerning the actual person of the child and its environment’.
39388/05, [2007] ECHR 1204, (2010) 51 EHRR 35
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.440729

Hoffmann v Austria (Case No 15/1992/360/434): ECHR 27 Jul 1993

It was a breach of the Convention when parental rights were refused to Jehovah’s Witnesses with regard to the right to refuse to accept a blood transfusion.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 14+8; Not necessary to examine Art. 8; Not necessary to examine Art. 9; Not necessary to examine P1-2; Costs and expenses award – Convention proceedings
Times 27-Jul-1993, [1993] ECHR 25, 12875/87, (1993) 17 EHRR 293, [1993] ECHR 25
Worldlii, Bailii
European Convention on Human Rights 8 14
Human Rights
Cited by:
Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.81425

Financial Times Ltd and others v Interbrew SA: CA 8 Mar 2002

The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case seemed to have widened the meaning of ‘necessary in the interests of justice or national security or for the prevention of disorder or crime’ which was the test under section 10 for the disclosure against a newspaper. The human rights of freedom of the press also must be considered. The respondents sought to make a claim for breach of confidence, and accordingly the tests under section 10 was satisfied. The source’s evidently maleficent purpose was critical.
Sedley LJ acknowledged the need to read section 10 of the 1981 Act compatibly with the Convention: ‘The purpose of s.10 of the Contempt of Court Act 1981 is to limit to the necessary minimum any requirement upon journalists to reveal their sources. It has now to be read and applied by our courts, so far as possible, compatibly with the Convention rights: Human Rights Act 1998, s.3(1). For reasons touched on earlier in this judgment, there should be no difficulty about this; but that is not to say that the Convention can simply be treated as background, for it and its jurisprudence may both amplify and modify the hitherto accepted meaning and effect of s.10. For present purposes the Convention right which is in play is the qualified right spelt out in art. 10.’
Lord Justice Ward, Lord Justice Sedley, And, Lord Justice Longmore
Times 21-Mar-2002, Gazette 18-Apr-2002, [2002] EWCA Civ 274, [2002] 2 Lloyd’s Rep 229, [2002] EMLR 446
Bailii
Contempt of Court Act 1981 10, European Convention on Human Rights 10
England and Wales
Citing:
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Ashworth Security Hospital v MGN Ltd CA 18-Dec-2000
The court can order the identity of a wrongdoer to be revealed where the person against whom the order was sought had become involved in his tortious acts. This might apply even where the acts were unlawful, but fell short of being tortious. There . .
Cited – Camelot Group Plc v Centaur Communications Plc QBD 15-Jul-1997
Human rights law is no aid in protecting a journalist against an order requiring the return of confidential documents, even though this might identify the source of leak. . .
Appeal from – Interbrew SA v Financial Times Ltd and Others ChD 19-Dec-2001
The claimant was involved in takeover proceedings. Certain confidential documents were taken, doctored, and released to and published by the defendants who now resisted orders for disclosure of the source.
Held: The court must balance the . .
Cited – P v T Ltd ChD 7-May-1997
A order for the disclosure of documents can be proper if it is the only method of founding proceedings against a third party, even though there might be no sufficient proof without the documents. An order was made because it was necessary in the . .

Cited by:
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Cited – Mersey Care NHS Trust v Ackroyd CA 21-Feb-2007
The defendant journalist had published confidential material obtained from the claimant’s secure hospital at Ashworth. The hospital now appealed against the refusal of an order for him to to disclose his source.
Held: The appeal failed. Given . .
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 . .
Appeal from – Financial Times Ltd and Others v The United Kingdom ECHR 15-Dec-2009
The claimants said that an order that they deliver up documents leaked to them regarding a possible takeover violated their right to freedom of expression. They complained that such disclosure might lead to the identification of journalistic . .
Cited – AMM v HXW QBD 7-Oct-2010
amm_hxwQBD10
The claimant had sought and been granted an injunction to prevent the defendant publicising matters which had passed between them and which were he said private.
Held: The jurisdiction to grant such injunctions was now established. Publication . .
Cited – Richard v British Broadcasting Corporation (BBC) and Another ChD 26-May-2017
Disclosure of Journalists’s Source ordered
The claimant had been investigated in connection with allegations (not proceeded with) of historic sexual abuse. The first defendant received information in advance of a search of the claimant’s house, and filmed and broadcast this from a . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.167726

Harding v Attorney General of Anguilla: PC 30 Jul 2018

(Anguilla) Mrs Harding claims that she was removed from office before the expiry of her final term in breach of the Constitution of Anguilla, and that she had a legitimate expectation of reappointment which was violated by the failure to reappoint her.
Lord Reed, Lord Kerr, Lord Sumption, Lord Hodge, Lord Briggs
[2018] UKPC 22
Bailii
England and Wales

Updated: 18 October 2021; Ref: scu.621121

AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another: SC 30 Jul 2018

The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the disclosure made was a proportionate interference with the claimant’s rights. This was a matter for assessment by the judge hearing the evidence.
Lord Carnwath said: ‘To limit intervention to a ‘significant error of principle’ is too narrow an approach, at least if it is taken as implying that the appellate court has to point to a specific principle – whether of law, policy or practice – which has been infringed by the judgment of the court below. The decision may be wrong, not because of some specific error of principle in that narrow sense, but because of an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. However, it is equally clear that, for the decision to be ‘wrong’ under CPR 52.11(3), it is not enough that the appellate court might have arrived at a different evaluation. ‘
Lord Kerr, Lord Reed, Lord Carnwath, Lord Hughes, Lord Lloyd-Jones
[2018] UKSC 47, [2018] WLR(D) 533, [2018] 1 WLR 4079, [2019] 1 All ER 391, [2018] HRLR 17, 46 BHRC 111, (2018) 21 CCL Rep 637
Bailii, Bailii Summary, WLRD
Police Act 1997 113B, European Convention on Human Rights 8, Human Rights Act 1998
England and Wales
Citing:
At Admn – AR, Regina (on The Application of) v The Greater Manchester Police and Another Admn 5-Sep-2013
The claimant sought judicial review of the enhanced criminal record issued by the respondents when he sought a licence as a private hire driver. He had been tried and acquitted on a charge of rape.
Held: The request for review failed.
Appeal from (CA) – AR, Regina (on The Application of) v Greater Manchester Police and Another CA 10-Jun-2016
The claimant complained that despite his acquittal after trial on a charge of rape, the accusation was revealed by the defendant on application for an enhanced criminal record certificate.
Held: The information contained in the certificate . .
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 – S, Regina (on the Application of) v West Mercia Constabulary and Another Admn 18-Nov-2008
The claimant complained of an enhanced disclosure of his record disclosing has arrest and trial on charges of outraging public decency. He said that he had been acquitted in terms which clearly said that the case was one of mistaken identity.
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 . .
Cited – LG v The Independent Monitor Admn 21-Dec-2017
The ECRC recorded the acquittal of a nurse on charges of theft from a patient, noting that her earlier admission of theft had been ruled inadmissible at trial, and the jury directed to acquit.
Held: The information had been properly included. . .
Cited – Regina (BW) v Independent Monitor Admn 2015
The ECRC had included the reasons given by a District Judge in the Youth Court for acquitting the applicant of a charge of common assault, including his view that ‘the burden of proof was not to the required standard and that the benefit of the . .
Cited – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
Cited – A, Regina (on The Application of) v Kent Constabulary CA 20-Dec-2013
The claimant had successfully challenged the terms of an enhanced Criminal Record certificate. The Chief Constable now appealed. . .
Cited – A, Regina (on The Application of) v The Chief Constable of Kent Constabulary Admn 8-Mar-2013
Claim under the Human Rights Act 1998, in respect of the Defendant’s decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate; the ECRC recorded that the applicant was found not . .
Cited – RK, Regina (on The Application of) v South Yorkshire Police and Another Admn 10-Jun-2013
Dispute between the claimant and South Yorkshire Police (‘SYP’) in connection with the latter’s proposed disclosure to prospective employers of information relating to events allegedly involving the claimant that occurred almost ten years ago. . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Pham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .
Cited – Allen v The United Kingdom ECHR 12-Jul-2013
The applicant alleged under Article 6 ss 2 of the Convention that the decision, following her acquittal, to refuse her compensation for a miscarriage of justice violated her right to be presumed innocent. . .
Cited – Re B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .
Cited – C, Regina (on The Application of) v Secretary of State for Work and Pensions CA 9-Feb-2016
The Court was asked whether, in the context of awarding Jobseeker’s Allowance, the State has unjustifiably interfered with the right of transgender persons to have information about their gender reassignment kept private.
Held: The appeal . .
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – Abela and Others v Baadarani SC 26-Jun-2013
The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service . .

Cited by:
Cited – Re Al M (Children) CA 28-Feb-2020
Publication of Children judgment – wide publicity
F brought wardship proceedings in respect of M and F’s two children, seeking their return to Dubai. F was the Ruler of the Emirate of Dubai. Media companies now sought publication of earlier judgments, and F appealed from an order for their . .
Cited – Rhuppiah v Secretary of State for The Home Department SC 14-Nov-2018
Ms R had overstayed, but resisted deportation claiming a long term relationship with a man for who she cared. Her leave was continued 11 times. A Seventh Day Adventist, the care she provided was as a friend. Indefinite leave to remain was refused . .

Lists of cited by and citing cases may be incomplete.
Updated: 18 October 2021; Ref: scu.620171

Laskey, Jaggard and Brown v The United Kingdom: ECHR 19 Feb 1997

A prosecution for sado-masochist acts was a necessary invasion of privacy to protect health. The Court found no violation where applicants were imprisoned as a result of sado-masochistic activities captured on video tape when police obtained possession of them. Although all male defendants in that case consented, they were charged with assault and wounding and sentenced to imprisonment. There was no unjustifiable interference.
A criminal conviction cannot constitute an interference with the right to respect for private life under Article 8, unless there are special circumstances in a particular case calling for a different conclusion.
Times 20-Feb-1997, 21826/93, 21627/93, 21974/93, [1997] 24 EHRR 39, [1997] ECHR 4
Worldlii, Bailii
European Convention on Human Rights 8
Human Rights
Citing:
Appeal from – Regina v Brown (Anthony); Regina v Lucas; etc HL 11-Mar-1993
The appellants had been convicted of assault, after having engaged in consensual acts of sado-masochism in which they inflicted varying degreees of physical self harm. They had pleaded guilty after a ruling that the prosecution had not needed to . .
See Also – Regina v Brown etc CACD 15-Apr-1992
The defendants appealed against their convictions for offences under the 1861 Act of assaults inflicting injury. They said that as sado-masochists, they had mutually consented to the assaults and that no offences had been commited, but pleaded gulty . .

Cited by:
Cited – Pay v Lancashire Probation Service EAT 29-Oct-2003
The appellant challenged refusal of his claim for unfair dismissal. A probation officer, he had business interests in fire breathing and bondage merchandising which the service said were incompatible with his duties, and dismissed him. He complained . .
Cited – Regina v Dica CACD 5-May-2004
Reckless HIV transmission – Grievous Bodily Harm
The defendant appealed against his conviction for inflicting grievous bodily harm. He had HIV/Aids, and was found to have transmitted the disease by intercourse when the victims were not informed of his condition. It was not suggested that any rape . .
Cited – Regina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .
Cited – 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 – Gillberg v Sweden ECHR 3-Apr-2012
(Grand Chamber) The applicant, a consultant psychiatrist, had conducted research with children under undertakings of absolute privacy. Several years later a researcher, for proper reasons, obtained court orders for the disclosure of the data under . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.165472

Vasilopoulou v Greece: ECHR 26 Sep 2002

Hudoc Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses – claim rejected
[2002] ECHR 638, 47541/99
Worldlii, Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – Vasilopoulou v Greece ECHR 21-Mar-2002
Hudoc Violation of Art. 6-1; Not necessary to examine Art. 13; Violation of P1-1; No violation of Art. 14; Just satisfaction reserved . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.568790

Vasilopoulou v Greece: ECHR 21 Mar 2002

Hudoc Violation of Art. 6-1; Not necessary to examine Art. 13; Violation of P1-1; No violation of Art. 14; Just satisfaction reserved
47541/99, [2002] ECHR 328, [2002] ECHR 328
Worldlii, Bailii
European Convention on Human Rights
Human Rights
Cited by:
See Also – Vasilopoulou v Greece ECHR 26-Sep-2002
Hudoc Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses – claim rejected . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.169825

Bournemouth Borough Council v PS and Another: CoP 11 Jun 2015

The court was asked to decide (i) whether the package of care provided to BS was in his best interests; (ii) whether that package amounted to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights 1950; and (iii) what contact Ben should have to his mother, the first respondent.
Mostyn J
[2015] EWCOP 39
Bailii
European Convention on Human Rights 5
England and Wales

Updated: 12 October 2021; Ref: scu.548026

Regina v Chief Constable of South Wales and Another Ex Parte Merrick: QBD 17 Feb 1994

The court considered the failure of the respondent to comply with a statutory requirement to comply with a request from a detained person to consult a solicitor ‘as soon as practicable’.
Held: For the police to deny access to solicitors at court after the court began at 10am was unlawful at common law, and an infringement of their rights. Ralph Gibson LJ referred to definitions of ‘practicable’ found respectively in the Shorter Oxford English Dictionary and Webster’s Dictionary: ‘capable of being carried out – feasible’ and ‘possible to be accomplished with known means and known resources’ respectively.
Ralph Gibson LJ
Independent 01-Apr-1994, Times 17-Feb-1994, [1994] 1 WLR 663
England and Wales
Citing:
Approved – Dedman v British Building and Engineering Appliances CA 1973
The claimant sought to bring his claim under a provision which required a complaint to the industrial tribunal to be made within four weeks of the dismissal unless the employment tribunal was satisfied that this was not ‘practicable’. He did not . .

Cited by:
Cited – North Somerset District Council v Honda Motor Europe Ltd and Others QBD 2-Jul-2010
Deleayed Rates Claims Service made them Defective
The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.86359

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 dissenting) The Commission did not have standing, and a declaration could not be made. The Court did however consider the law, and a majority thought the current law was disproportionate and was incompatible with Article 8 to the extent that that law prohibits abortion in cases of (a) fatal foetal abnormality, (b) pregnancy as a result of rape and (c) pregnancy as a result of incest.
Lady Hale said: ‘It is more difficult to articulate the legitimate aim. It cannot be protecting the rights and freedoms of others, because the unborn are not the holders of rights under the Convention (Vo v France (2004) 40 EHRR 12) or under domestic law (In re MB (Medical Treatment) [1997] 2 FLR 426). But the community undoubtedly does have a moral interest in protecting the life, health and welfare of the unborn – it is that interest which underlies many areas of the law, including the regulation of assisted reproduction, and of the practice of midwifery, as well as of the termination of pregnancy. But the community also has an interest in protecting the life, health and welfare of the pregnant woman – that interest also underlies the regulation of assisted reproduction, of midwifery and of the termination of pregnancy. And pregnant women are undoubtedly rights-holders under the both the Convention and domestic law with autonomy as well as health and welfare rights. The question, therefore, is how the balance is to be struck between the two.’
Lady Hale, President, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lady Black, Lord Lloyd-Jones
[2018] UKSC 27, [2018] NI 228, 46 BHRC 1, [2019] 1 All ER 173, [2018] HRLR 14
Bailii, Bailii Summary, Supreme Court, SC Summary, SC Summary Video, SC Video 2017 Oct 24am, SC 2017 Oct 24 pm Video, SC Video 2017 Oct 25 am, SC 2017 Oct 25 pm Video, SC 2017 Oct 26 am Video, SC 2017 Oct 26 pm Video
Offences Against the Person Act 1861 58 59, Criminal Justice Act (NI) 1945 25(1), European Convention on Human Rights 8 14, Northern Ireland Act 1998
Northern Ireland
Citing:
Appeal from – The Attorney General for Northern Ireland and Another v The Northern Ireland Human Rights Commission CANI 29-Jun-2017
Appeal by the Attorney General and Department of Justice against an Order declaring that sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act were incompatible with Article 8 of ECHR insofar as it is an offence:
(i) to procure a . .
Cited – Rex v Bourne 1939
An eminent surgeon openly in a public hospital operated to terminate the pregnancy of a 14 year old girl who had become pregnant in consequence of a violent rape.
Held: The court suggested when summing up that there might be a duty in certain . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – In Re Northern Ireland Human Rights Commission Northern Ireland HL 20-Jun-2002
The coroner intended to hold an inquest into the deaths on the Omagh bombing. The Commission sought the right to be involved on the basis that human rights of interest to it might arise, and the coroner refused, saying that they had no standing to . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – 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 – Vo v France ECHR 8-Jul-2004
Hudoc Preliminary objection rejected (ratione materiae, non-exhaustion of domestic remedies) ; No violation of Art. 2
A doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks . .
Cited – Family Planning Association of Northern Ireland v Minister for Health Social Services and Public Safety CANI 8-Oct-2004
A termination of pregnancy is lawful when its continuation would threaten the woman’s life or when it would probably affect her physical or mental health but only if the effect would be serious and, in particular, permanent or long-term . .
Cited – A, B And C v Ireland ECHR 16-Dec-2010
Grand Chamber – The Court considered the prohibition of abortion in Ireland: ‘The first two applicants principally complained under Article 8 about, inter alia, the prohibition of abortion for health and well-being reasons in Ireland and the third . .
Cited – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Klass And Others v Germany ECHR 6-Sep-1978
(Plenary Court) The claimant objected to the disclosure by the police of matters revealed during their investigation, but in this case, it was held, disclosure even after the event ‘might well jeopardise the long-term purpose that originally . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Stubing v Germany ECHR 12-Apr-2012
‘. . in cases arising from individual applications it is not the Court’s task to examine domestic legislation in the abstract. Rather, it must examine the manner in which the relevant legislation was applied to the applicant in the particular . .
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 – Taylor v Lancashire County Council and others CA 17-Mar-2005
The tenant occupied his farm under a lease limiting his use of the farm. He was found to be trading in breach of his covenant and a notice to quit was issued and possession sought. He argued that the 1986 Act was discriminatory and inadequate to . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Regina v Secretary of State for Home Department ex parte Chahal Admn 22-Oct-1997
. .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Cited – Saadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
Cited – Attorney-General’s Reference (No 3 of 1994) HL 24-Jul-1997
The defendant stabbed a pregnant woman. The child was born prematurely and died. The attack had been directed at the mother, and the proper offence was manslaughter.
Held: The only questions which need to be addressed are (1) whether the act . .
Cited – Gafgen v Germany ECHR 1-Jun-2010
(Grand Chamber) The claimant said that police treatment during his interview had amounted to torture.
Held: The Salduz principles were not restricted to the failure to provide access to a lawyer during interview. There is no clear consensus . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Stec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
Cited – RR v Poland ECHR 26-May-2011
The applicant learned of possible malformation of the foetus from an ultrasound at the 18-week stage. Her repeated requests for genetic tests were met with procrastination, confusion and a lack of proper counselling and information, and it was not . .
Cited – Ilhan v Turkey ECHR 27-Jun-2000
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (victim); Preliminary objection dismissed (non-exhaustion); No violation of Art. 2; Violation of Art. 3; Violation of Art. 13; . .
Cited – Tysiac v Poland ECHR 16-Mar-2007
The complainant complained about the failure to afford her an abortion in circumstances where she had an understandable fear that giving birth would lead to her losing her already poor sight, leading to a further six-months of pregnancy and a . .
Cited – P and S v Poland ECHR 30-Oct-2012
P aged 14 became pregnant due to rape, evidenced by bruises. Polish law permitted an abortion in such circumstances, but the reality of its practical implementation was in striking discordance with the theoretical right. P was given contradictory . .
Cited – Open Door and Dublin Well Woman v Ireland ECHR 29-Oct-1992
Hudoc Judgment (Merits and just satisfaction) Lack of jurisdiction (Art. 8); Preliminary objection rejected (victim); Preliminary objection rejected (six month period); Preliminary objection rejected . .
Cited – Opuz v Turkey ECHR 9-Jun-2009
The applicant alleged, in particular, that the State authorities had failed to protect her and her mother from domestic violence, which had resulted in the death of her mother and her own ill-treatment. . .
Cited – Attorney General v X 5-Mar-1992
(Supreme Court of Ireland) Refusal of abortion following a rape . .
Cited – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .
Cited – Parkinson v St James and Seacroft University Hospital NHS Trust CA 11-Apr-2001
A mother had undergone a negligent sterilisation, and in due course she gave birth to a disabled child.
Held: The right to bodily integrity is the first and most important of the interests protected by the law of tort. The cases saying that . .
Cited – Regina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
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 – Egmez v Cyprus ECHR 21-Dec-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; No violation of Art. 5-1; No violation of Art. 5-2; No violation of Art. 5-3; No violation of Art. 5-4; Violation of Art. 13; No separate issue . .
Cited – Gafgen v Germany ECHR 30-Jun-2008
(Fifth Section) The claimant said that having been arrested by police, their treatment of him amounted to torture.
Held: Iit was not necessary to rule on the Government’s preliminary objection of non-exhaustion of domestic remedies. It held, . .
Cited – Krastanov v Bulgaria ECHR 30-Sep-2004
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 3; Violation of Art. 6-1; Not necessary to examine P1-1; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – Mayeka and Mitunga v Belgium ECHR 12-Oct-2006
A five-year-old child was detained by the Belgian authorities in an immigration centre.
Held: The court assessed the impact of the treatment on the applicant, stating that her position was: ‘characterised by her very young age, the fact that . .
Cited – Wiktorko v Poland ECHR 31-Mar-2009
. .
Cited – Mouvement Raelien Suisse v Switzerland ECHR 13-Jan-2011
The applicant association alleged that the banning of its posters by the Swiss authorities had breached its right to freedom of religion and its right to freedom of expression, as guaranteed by Articles 9 and 10 of the Convention respectively. . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Nada v Switzerland (GC) ECHR 12-Sep-2012
(Grand Chamber) ‘The court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right . .
Cited – Sufi and Elmi v The United Kingdom ECHR 28-Jun-2011
The risk of the applicants being subjected to treatment which would violate article 3 if returned to Somalia meant that the British authorities would be in breach of the article if they carried through their intention to deport them to that country. . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .

Cited by:
Cited – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 September 2021; Ref: scu.617206

Keskin v Turkey: ECHR 10 Jul 2018

ECHR Judgment : Article 6 – Right to a fair trial : Second Section Committee
16887/09, [2018] ECHR 580
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – Keskin v Turkey ECHR 30-Oct-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings . .
See Also – Keskin v Turkey ECHR 22-Nov-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 10; Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings. . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 September 2021; Ref: scu.619979

Adiyaman v Turkey: ECHR 9 Jan 2018

24211/08, [2018] ECHR 9
Bailii
European Convention on Human Rights
Human Rights
Citing:
See Also – Adiyaman v Turkey ECHR 30-Oct-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.607207

Liewe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Hm Advocate: HCJ 14 Apr 2000

A judge, having given judgment in an appeal case involving the application of the convention on Human Rights, wrote and published an article critical of the convention, and of its application in national law. The appeal decision was set aside, since the reality or appearance of objective impartiality which was clearly required by both common law and the convention had been lost. The requirement for impartiality was both objective and subjective.
Lord Justice General and Lady Cosgrove and Lord Sutherland
Times 14-Apr-2000, [2000] ScotHC 32
Bailii
European Convention on Human Rights
Scotland
Citing:
See Also – Note of Appeal Against Conviction and Sentence By Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Her Majesty’s Advocate HCJ 28-Jan-2000
. .
See Also – Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Endrik Van Rijs v Her Majesty’s Advocate HCJ 7-Mar-2000
. .

Cited by:
See Also – Lieuwe Hoekstra and Jan Van Rijs and Ronny Van Rijs and Hendrik Van Rijs v Her Majesty’s Advocate HCJ 2-Jun-2000
. .
See Also – Hoekstra and Others v Her Majesty’s Advocate High Court of Justiciary PC 26-Oct-2000
The Privy Council has no standing to act as a general court of appeal on Scottish law. The jurisdiction given to it by the Act, was limited as prescribed by the Act to what are called devolution issues, issues related to the acts of devolution. Not . .
See Also – Hoekstra and Van Rijs etc v Her Majesty’s Advocate HCJ 18-Jan-2001
. .
See Also – Hoekstra and Van Rijs and Van Rijs and Van Rijs v Her Majesty’s Advocate HCJ 23-Jan-2002
. .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.81423

Buscarini And Others v San Marino: ECHR 7 Apr 1997

Hudoc Elected MPs complained that they were not allowed to take their seats unless they swore an oath in religious form.
24645/94, [1997] ECHR 188
Worldlii, Bailii
Human Rights
Cited by:
See Also – 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, . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.165699

Aldeguer Tomas v Spain: ECHR 14 Jun 2016

‘The prohibition of discrimination enshrined in article 14 applies to those additional rights, falling within the general scope of any Convention article, for which the state has voluntarily decided to provide.’
35214/09 (Judgment (Merits and Just Satisfaction) : Court (Third Section)), [2016] ECHR 526
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.565883

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 appeal failed. Section 3(1) was a potential violation of the claimants’ Article 8 and 14 Rights. A clear obligation existed
‘. . the approach of the ECtHR to the question of what margin of appreciation member states should be accorded is not mirrored by the exercise which a national court is required to carry out in deciding whether an interference with a Convention right is justified . . a national court must confront the interference with a Convention right and decide whether the justification claimed for it has been made out. It cannot avoid that obligation by reference to a margin of appreciation to be allowed the government or Parliament, (at least not in the sense that the expression has been used by ECtHR)’
Lady Hale, President

Lord Kerr

Lord Wilson

Lord Reed

Lady Black
[2018] UKSC 32, 45 BHRC 169, [2018] 4 All ER 1, [2020] AC 1, [2018] 2 FCR 691, [2018] 3 WLR 415, [2018] WLR(D) 403, [2018] 2 FLR 906, UKSC 2017/0060
Bailii, SC Summary, WLRD, SC, SC Summary, SC Video Summary, SC 2018 May 15 am Video, SC2018 May 15 pm Video
Civil Partnership Act 2004, Marriage (Same Sex Couples) Act 2013, European Convention on Human Rights 8
England and Wales
Citing:
At Admn – 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 . .
At CA – 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 . .
Cited – Salgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
Cited – 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 – Salgueiro da Silva Mouta v Portugal ECHR 1-Dec-1998
A homosexual claimed that an award of custody of his daughter to her mother was an unjustified interference with his right to respect for family life, and also with his right to respect for his private life since he was required in respect of his . .
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 – Schalk and Kopf v Austria ECHR 24-Jun-2010
The applicants alleged discrimination in that as a same sex couple they were not allowed to marry.
Held: There was no violation.
The Court cannot but note that there is an emerging European consensus towards legal recognition of same-sex . .
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 – Karner v Austria ECHR 24-Jul-2003
A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of . .
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 – EB v France ECHR 22-Jan-2008
The claimant, a homosexual woman, complained that her homosexuality had meant her disqualification from adopting a child.
Held: There is no right to foster, but the provision was an unlawful discrimination. The denial of adoption to a woman in . .
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 – AL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .

Cited by:
Cited – Elan-Cane, Regina (on The Application of) v The Secretary of State for The Home Department and Another CA 10-Mar-2020
No right to non-gendered passport
The claimant sought judicial review of the police of the respondent’s policy requiring a passport applicant to identify themselves as either male or female. The claimant began life as a female, but, with surgery, asserted a non-gendered identity. . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.618853

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 Greek nationals and an association whose aims include providing psychological and moral support to gays and lesbians. On 26 November 2008 Law no. 3719/2008, entitled ‘Reforms concerning the family, children and society’, entered into force. It introduced an official form of partnership for unmarried couples called a ‘civil union’, which was restricted to different-sex couples, thereby excluding same-sex couples from its scope.
Law – Article 14 in conjunction with Article 8
(a) Applicability – The applicants had formulated their complaint under Article 14 taken in conjunction with Article 8, and the Government did not dispute the applicability of those provisions. The Court found it appropriate to follow that approach. Furthermore, the applicants’ relationships fell within the notion of ‘private life’ and that of ‘family life’, just as would the relationships of different-sex couples in the same situation. Article 14 taken in conjunction with Article 8 was therefore applicable.
(b) Merits – The applicants were in a comparable situation to different-sex couples with regard to their need for legal recognition and protection of their relationships. However, section 1 of Law no. 3719/2008 expressly reserved the possibility of entering into a civil union to two individuals of different sex. Accordingly, by tacitly excluding same-sex couples from its scope, the Law in question introduced a difference in treatment based on the sexual orientation of the persons concerned.
The Government relied on two sets of arguments to justify the legislature’s choice not to include same-sex couples in the scope of the Law. Firstly, they contended that if the civil unions introduced by the Law were applied to the applicants, this would result for them in rights and obligations – in terms of their property status, the financial relations within each couple and their inheritance rights – for which they could already provide a legal framework under ordinary law, that is to say, on a contractual basis. Secondly, the Law in question was designed to achieve several objectives, including strengthening the legal status of children born outside marriage and making it easier for parents to raise their children without being obliged to marry. That aspect, they argued, distinguished different-sex couples from same-sex couples, since the latter could not have biological children together. The Court considered it legitimate from the standpoint of Article 8 of the Convention for the legislature to enact legislation to regulate the situation of children born outside marriage and indirectly strengthen the institution of marriage within Greek society, by promoting the notion that the decision to marry would be taken purely on the basis of a mutual commitment entered into by two individuals, independently of outside constraints or of the prospect of having children. The protection of the family in the traditional sense was, in principle, a weighty and legitimate reason which might justify a difference in treatment. It remained to be ascertained whether the principle of proportionality had been respected in the present case.
The legislation in question was designed first and foremost to afford legal recognition to a form of partnership other than marriage. In any event, even assuming that the legislature’s intention had been to enhance the legal protection of children born outside marriage and indirectly to strengthen the institution of marriage, the fact remained that by enacting Law no. 3719/2008 it had introduced a form of civil partnership which excluded same-sex couples while allowing different-sex couples, whether or not they had children, to regulate numerous aspects of their relationship.
The Government’s arguments focused on the situation of different-sex couples with children, without justifying the difference in treatment arising out of the legislation in question between same-sex and different-sex couples who were not parents. The legislature could have included some provisions dealing specifically with children born outside marriage, while at the same time extending to same-sex couples the general possibility of entering into a civil union. Lastly, under Greek law, different-sex couples – unlike same-sex couples – could have their relationship legally recognised even before the enactment of Law no. 3719/2008, whether fully on the basis of the institution of marriage or in a more limited form under the provisions of the Civil Code dealing with de facto partnerships. Consequently, same-sex couples would have a particular interest in entering into a civil union since it would afford them, unlike different-sex couples, the sole basis in Greek law on which to have their relationship legally recognised.
Lastly, although there was no consensus among the legal systems of the Council of Europe member States, a trend was currently emerging with regard to the introduction of forms of legal recognition of same-sex relationships. Of the nineteen States which authorised some form of registered partnership other than marriage, Lithuania and Greece were the only ones to reserve it exclusively to different-sex couples. The fact that, at the end of a gradual evolution, a country found itself in an isolated position with regard to one aspect of its legislation did not necessarily imply that that aspect conflicted with the Convention. Nevertheless, in view of the foregoing considerations, the Court found that the Government had not offered convincing and weighty reasons capable of justifying the exclusion of same-sex couples from the scope of Law no. 3719/2008.
Conclusion: violation (sixteen votes to one).
Article 41: EUR 5,000 to each of the applicants, apart from the applicant association in application no. 32684/09, in respect of non-pecuniary damage.
29381/09 32684/09 – Legal Summary, [2014] ECHR 116
Bailii
European Convention on Human Rights 14
Human Rights
Cited by:
Cited – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
Legal Summary – 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 – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.521934

Gard And Others v The UK: ECHR 13 Jun 2017

ECHR Decision
39793/17, [2017] ECHR 559
Bailii
European Convention on Human Rights
Human Rights
Cited by:
See also – Gard And Others v The UK ECHR 27-Jun-2017
. .
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.607650

Director of Legal Aid Casework and Others v Briggs: CA 31 Jul 2017

Orse In re Briggs (Incapacitated Person)
Sir Brian Leveson P, King , Burnett LJJ
[2017] EWCA Civ 1169, [2017] WLR(D) 535, (2017) 158 BMLR 88, [2018] 2 All ER 990, [2018] 2 WLR 152, [2017] COPLR 370, [2017] CP Rep 45, , [2018] Fam 63
Bailii, WLRD
Mental Capacity Act 2005
England and Wales
Citing:
Appeal from – Briggs v Briggs and Others (EWCOP 48) CoP 24-Nov-2016
The Court considered whether the disagreement about whether it was in the best interests of Mr B for him to be given clinically assisted nutrition and hydration, was one which could be determined . .

Cited by:
Cited – An NHS Trust and Others v Y and Another SC 30-Jul-2018
The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.591676

Aydin v Turkey: ECHR 25 Sep 1997

ECHR Judgment (Merits and just satisfaction) Preliminary objection rejected (estoppel); Violation of Art. 3; Violation of Art. 13; Not necessary to examine Art. 6-1; No violation of Art. 25-1; Not necessary to examine Art. 28-1-a; Not necessary to examine Art. 53; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
There is an additional duty on the state properly to investigate allegations of torture by state agents.
[1997] ECHR 75, 23178/94, (1998) 25 EHRR 251
Worldlii, Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – A, Re Application for Judicial Review QBNI 25-Jun-2001
The applicant, who feared for his life if identified, sought the release to him of materials discovered by the police in searching premises associated with a loyalist paramiliitary group. He thought that they might include information sourced form . .
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 – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.165541

Regina v A (Complainant’s Sexual History) (No 2): HL 17 May 2001

The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant as to make the trial unfair without its admission, the section excluding such admission should be read so as to allow admission of such evidence. Evidence of earlier sexual behaviour of a woman has in the past been used to stereotype them as being both unchaste and untruthful. There had remained a serious mischief to be corrected. Nevertheless, a prior relationship could well affect the minds of the parties, and may be relevant. What constituted ‘at or about the same time’ for the purposes of admission, was to be read accordingly.
Lord Steyn observed that, while the right to a fair trial was absolute in the sense that a conviction obtained in breach of it could not stand, in determining what the concept of a fair trial entails, account could be taken of the familiar triangulation of the interests of the accused, the victim, and society.
Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Hutton
Times 24-May-2001, [2001] UKHL 25, [2001] 3 All ER 1, [2001] 2 WLR 1586, [2002] 1 AC 45, [2001] UKHRR 825, (2001) 165 JPN 750, [2001] HRLR 48, [2001] Cr App R 21, 11 BHRC 225, (2001) 165 JP 609
Bailii, House of Lords
Human Rights Act 1998 3, Youth Justice and Criminal Evidence Act 1999 41
England and Wales
Citing:
See Also – Regina v A (Joinder of Appropriate Minister) HL 21-Mar-2001
An appeal was to be heard by the committee in which it was expected that a declaration of incompatibility would be considered in respect of legislation restricting the raising by a defendant on a charge of rape of the complainant’s sexual history. . .

Cited by:
Cited – Goode v Martin CA 13-Dec-2001
The claimant had sought to amend her claim for damages for personal injuries. The application had been rejected as introducing a claim not based on the same facts. She had suffered severe head injuries, and had no memory of the accident. She served . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions CA 18-Jun-2003
The appellants were widowers whose wives had died at a time when the benefits a widow would have received were denied to widowers. The legislation had since changed but they variously sought compensation for the unpaid sums.
Held: The appeal . .
Cited – Balamurali, Sandhu v Secretary of State for the Home Department CA 15-Dec-2003
The applicants challenged certificates from the respondent that their appeals were mere delaying tactice.
Held: The section aimed to grant specific rights of appeal, to ensure that all possible appeal issues were decided, and to prevent abuse. . .
Cited – Rusbridger and Another v Attorney General CA 20-Mar-2002
The paper wanted to publish an article about the monarchy but was concerened that it might lead to it being prosecuted under the 1848 Act. The complainant sought declarations as to the incompatibility of the 1848 Act with the 1998 Act.
Held: . .
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 – Al-Fayed and others v Commissioner of Police of the Metropolis and others CA 25-Nov-2004
The appellants appealed from dismissal of their claims for wrongful imprisonment by the respondent. Each had attended at a police station for interview on allegations of theft. They had been arrested and held pending interview and then released. Mr . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Nov-2004
The defendant had heard that the sentencing judge would set his sentence tarriff without an oral hearing, and would then give his decision in open court. He sought judicial review.
Held: Review was granted. The availability of a right of . .
Cited – Regina v F (Complainant’s sexual history) CACD 3-Mar-2005
The defendant had sought to raise the complainant’s sexual history in evidence. The allegation was that he had repeatedly raped his step daughter. He wished to put in evidence that after she had grown up, they had lived together after she had . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Francis v Secretary of State for Work and Pensions CA 10-Nov-2005
The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or . .
Cited – 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 – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
Cited – A v P (Surrogacy: Parental Order: Death of Applicant) FD 8-Jul-2011
M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Cited – Child Maintenance and Enforcement Commission v Gibbons; Same v Karoonian CA 30-Oct-2012
Non-resident parents in each case appealed against suspended orders of imprisonment for non-payment of child support. They argued that the procedures used were indistinguishable from those held to be human rights non-compliant in Mubarak.
Cited – Matheson v Mazars Solutions Ltd EAT 16-Dec-2003
EAT Practice and Procedure – Application. The application had been presented timeously at the ET in Edinburgh, but was out of time when retransmitted to Glasgow. The tribunal had found the Edinburgh office to be . .
Cited – Gjoni v Regina CACD 9-Apr-2014
The defendant appealed against his conviction for rape, raising an issue as to the proper approach to a judgment whether to exclude evidence of sexual behaviour of the complainant relating to a ‘relevant issue in the case’ within the meaning of . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.88367

Robert Pfleger, Mladen Vucicevic, Maroxx Software Gmbh, Ing. Hans-Jorg Zehetner: ECJ 30 Apr 2014

ECJ Article 56 TFUE – Freedom to provide services – Charter of Fundamental Rights of the European Union – Articles 15 to 17, 47 and 50 – Freedom to choose an occupation, right to engage in work, freedom to conduct a business, right to property, right to an effective remedy and access to an impartial tribunal, ne bis in idem principle – Article 51 – Scope – Implementation of European Union law – Games of chance – Restrictive legislation of a Member State – Administrative and criminal penalties – Overriding reasons in the public interest – Proportionality
M Ilesic P
ECLI:EU:C:2014:281, [2014] EUECJ C-390/12
Bailii
Charter of Fundamental Rights of the European Union 15 16 17 50, TFUE 56
European
Citing:
Opinion – Robert Pfleger, Mladen Vucicevic, Maroxx Software Gmbh, Ing. Hans-Jorg Zehetner ECJ 14-Nov-2013
ECJ Article 56 TFEU – Freedom to provide services – Games of chance – Legislation prohibiting the provision of gaming machines without a licence – Limited number of licences – Criminal penalties – Proportionality . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.583966

Allen v The United Kingdom: ECHR 12 Jul 2013

The applicant alleged under Article 6 ss 2 of the Convention that the decision, following her acquittal, to refuse her compensation for a miscarriage of justice violated her right to be presumed innocent.
Dean Spielmann, President
25424/09 – Grand Chamber Judgment, [2013] ECHR 678, (2016) 63 EHRR 10, [2013] ECHR 678
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2021; Ref: scu.512405

C, Regina (on The Application of) v Secretary of State for Work and Pensions: CA 9 Feb 2016

The Court was asked whether, in the context of awarding Jobseeker’s Allowance, the State has unjustifiably interfered with the right of transgender persons to have information about their gender reassignment kept private.
Held: The appeal failed. Elias LJ accepted that article 8 was engaged by both the Retention and the SCR policies, but agreed with Simon J that the interference was proportionate. He rejected the argument that article 14 required transgender customers to be treated differently from others. Any indirect discrimination entailed in the SCR policy was justified for the same reasons that the interference with article 8 rights was justified. A new argument, that the policies were contrary to the requirement in section 9 of the Gender Recognition Act 2004 that where a full gender recognition certificate is issued, ‘the person’s gender becomes for all purposes the acquired gender’ was rejected: this did not require history to be rewritten.
Elias, Patten, Black LJJ
[2016] EWCA Civ 47, [2016] WLR(D) 68, [2016] PTSR 1344
Bailii, WLRD
European Convention on Human Rights 8, Gender Recognition Act 2004
England and Wales
Citing:
Appeal from – C, Regina (on The Application of) v Secretary of State for Work and Pensions and Another Admn 18-Jul-2014
The court was asked as to the extent to which the State should retain personal information about citizens, and whether its policies or practices for doing so comply with the human rights of those citizens. It arose in the instant case in a . .

Cited by:
Appeal from – C, Regina (on The Application of) v Secretary of State for Work and Pensions SC 1-Nov-2017
This case is about how the Department for Work and Pensions (the DWP), in administering our complex welfare benefits system, treats people with a reassigned gender, and specifically whether certain policies conflict (1) with the Gender Recognition . .
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2021; Ref: scu.559582

Re D (A Child): CA 31 Oct 2017

The court considered an order effectively depriving child D of his liberty.
Sir James Munby P FD, David Richards, Irwin LJJ
[2017] EWCA Civ 1695, (2018) 160 BMLR 61, [2018] 2 FLR 13, [2018] COPLR 1, [2018] PTSR 1791
Bailii
Mental Capacity Act 2005, European Convention on Human Rights 8
England and Wales
Citing:
Appeal from – Birmingham City Council v D CoP 21-Jan-2016
D was a young adult with several disorders presenting challenging behaviour. The Hospital sought arrangements allowing control over him for his care and eucation. . .
Cited – In Re K (A Child) (Secure Accommodation Order: Right to Liberty) CA 29-Nov-2000
An order providing that a child should stay in secure accommodation, was an order which restricted the child’s liberty. A justification for such a restriction had to be brought within the exceptions listed in article 5.
Held: Detention for . .

Cited by:
Appeal From – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2021; Ref: scu.598462

Salvesen v Riddell and Another: SCS 15 Mar 2012

Second Division – The court allowed an appeal under section 88(1) of the 2003 Act from a decision of the Scottish Land Court. The section was incompatible with the European Convention on Human Rights. The Court proceeded on the basis that section 72 was enacted as an anti-avoidance measure. But on that basis that it was inappropriate because of its excessive effect and its arbitrary scope. The Lord Justice Clerk said that it was excessive because, if the landlord should fail to obtain an order of the Land Court under section 72(9), the general partner is given a 1991 Act tenancy of the holding, with all the adverse consequences to the landlord that this involves, and the landlord is also exposed to the tenant’s contingent right to buy.
Lord Justice Clerk Gill, Lord Osborne and Lord Nimmo Smith
[2012] ScotCS CSIH – 26, 2012 Hous LR 30, 2012 GWD 12-234, 2013 SC 69, 2012 SCLR 403, 2012 SLT 633
Bailii
Agricultural Holdings (Scotland) Act 2003 88(1), European Convention on Human Rights 1
Scotland
Citing:
At Scottish Land Court – Salvesen v Riddell SLC 29-Jul-2010
SLC Agricultural holdings – limited partnership tenancy – limited partner being agent of landlord – notice of dissolution of partnership validly given – notice given on 3 Feb 2003 – expected change of legislation . .

Cited by:
At Court of Session – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
At SCS – Salvesen v Riddell and Another SCS 6-Jan-2015
The appellant enrolled a motion requesting payment by the Land court of the costs occasioned in a long running legal dispute. . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.452231

AR, Regina (on The Application of) v The Greater Manchester Police and Another: Admn 5 Sep 2013

The claimant sought judicial review of the enhanced criminal record issued by the respondents when he sought a licence as a private hire driver. He had been tried and acquitted on a charge of rape.
Held: The request for review failed.
After referring to Allen v UK, the judge said or article 6: ‘a) The aim of Article 6.2 (after acquittal) is to protect the individual who is acquitted from being treated in subsequent proceedings or by public officials as if in fact guilty of the offence charged. Contrary to Mr Southey’s submission that the disclosure here ‘implies that [the claimant] is guilty of a serious sexual offence’, in my view it does no such thing. In no way does it suggest that he should have been convicted, nor does it suggest that he in fact committed the acts complained of. What may fairly be implied is the suggestion that, notwithstanding the acquittal, he may in fact have committed the acts complained of; that does not, however, impugn the correctness of the acquittal, and I accept Mr Coppel’s submission that there is a valid distinction between a statement casting doubt on the correctness of an acquittal and a statement that suggests that, notwithstanding the acquittal, the claimant might have committed the acts alleged.
b) In my judgment, it is no breach of article 6(2) to imply, in a statement made lawfully under Section 113B(4) of the Police Act 1997, that, notwithstanding the acquittal, the claimant might in fact have committed the act complained of in a criminal charge. For such disclosure to be lawful, it must be justified under Article 8, as I have found this disclosure to be, and in my view that renders the disclosure lawful under the ECHR.’
Raynor QC HHJ
[2013] EWHC 2721 (Admin)
Bailii
Police Act 1997, European Convention on Human Rights 6(2)
England and Wales
Cited by:
Appeal from – AR, Regina (on The Application of) v Greater Manchester Police and Another CA 10-Jun-2016
The claimant complained that despite his acquittal after trial on a charge of rape, the accusation was revealed by the defendant on application for an enhanced criminal record certificate.
Held: The information contained in the certificate . .
At Admn – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.584693

SXH v The Crown Prosecution Service (CPS): SC 11 Apr 2017

The Court was asked: ‘Does a decision by a public prosecutor to bring criminal proceedings against a person fall potentially within the scope of article 8 of the European Convention on Human Rights in circumstances where a) the prosecutor has reasonable cause to believe the person to be guilty of the offence with which they are charged and b) the law relating to the offence is compatible with article 8?’ The appellant a Somali national fled and sought asylum here. Her identity papers were false, and she was charged under the 2006 Act despite agreement that she would not have been able to obtain proper papers.
Held: The appeal failed. When deciding whether to institute criminal proceedings, the Crown Prosecution Service (‘CPS’) must to apply a two stage test; first, whether there is enough evidence to provide a realistic prospect of conviction; if so whether the prosecution would be in the public interest.
Article 8 while broad was not so broad as to include all acts of a public authority even when they might encroach more than minimally on the lives of individuals.
Lord Toulson said: ‘The duty of the CPS is to the public, not to the victim or to the suspect, who have separate interests. To recognise a duty of care towards victims or suspects or both, would put the CPS in positions of potential conflict, and would also open the door to collateral interlocutory civil proceedings and trials, which would not be conducive to the best operation of the criminal justice system. Similar considerations are relevant when considering the applicability of article 8 in the context of a decision to prosecute. A decision to prosecute does not of itself involve a lack of respect for the autonomy of the defendant but places the question of determining his or her guilt before the court, which will itself be responsible for deciding ancillary questions of bail or remand in custody and the like.’
Lord Mance, Lord Kerr, Lord Reed, Lord Hughes, Lord Toulson
[2017] UKSC 30, [2017] WLR(D) 270, [2017] Crim LR 712, [2017] 1 WLR 1401, UKSC 2014/0148
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video Summary
Identity Cards Act 2006, European Convention on Human Rights
England and Wales
Citing:
Cited – Regina v Fregenet Asfaw HL 21-May-2008
The House considered the point of law: ‘If a defendant is charged with an offence not specified in section 31(3) of the Immigration and Asylum Act 1999, to what extent is he entitled to rely on the protections afforded by article 31 of the 1951 . .
Appeal from – SXH v Crown Prosecution Service CA 6-Feb-2014
The claimant challenged being charged with an offence under the 2006 Act, saying that it engaged and interfered with her Article 8 Human Rights. A Somali national, she fled, claiming asylum here, but her travel documents were found to be false. All . .
Cited – Regina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .
Cited – G v The United Kingdom ECHR 30-Aug-2011
The appellant aged 15, had sexual intercourse with a girl aged 12. He pleaded guilty to a charge of rape of a child under 13, contrary to section 5 of the 2003 Act, on the written basis that the intercourse was consensual in fact (although by reason . .
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Cited – Calveley v Chief Constable of the Merseyside Police HL 1989
Police officers brought an action in negligence against a Chief Constable on the ground that disciplinary proceedings against them had been negligently conducted. They claimed that the investigating officers had negligently failed to conduct the . .
Cited – Elguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – Brooks v Commissioner of Police for the Metropolis and others HL 21-Apr-2005
The claimant was with Stephen Lawrence when they were both attacked and Mr Lawrence killed. He claimed damages for the negligent way the police had dealt with his case, and particularly said that they had failed to assess him as a victim of crime, . .
Cited – Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .

Cited by:
Cited – Robinson v Chief Constable of West Yorkshire Police SC 8-Feb-2018
Limits to Police Exemption from Liability
The claimant, an elderly lady was bowled over and injured when police were chasing a suspect through the streets. As they arrested him they fell over on top of her. She appealed against refusal of her claim in negligence.
Held: Her appeal . .
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.581648

A v United Kingdom: ECHR 2002

‘Statements made by MPs outside the Houses of Parliament are subject to the ordinary laws of defamation and breach of confidence, save where they are protected by qualified privilege.’ and ‘Furthermore, the immunity afforded to MPs in the United Kingdom appears to the Court to be in several respects narrower than that afforded to members of national legislatures in certain other signatory States and those afforded to Representative to the Parliamentary Assembly of the Council of Europe and Members of the European Parliament. In particular, the immunity attaches only to statements made in the course of parliamentary debates on the floor of the House of Commons or House of Lords. No immunity attaches to statements made outside Parliament, even if they amount to a repetition of statements made during the course of Parliamentary debates on matters of public interest. Nor does any immunity attach to an MP’s press statements published prior to parliamentary debates, even if their contents are repeated subsequently in the debate itself.’
(2002) 36 EHRR 917
European Convention on Human Rights
Human Rights
Cited by:
Cited – Jennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.199243

A v United Kingdom: ECHR 8 Oct 1982

A disabled UK citizen living on benefits complained of the denial of entry clearance to his Filippino fiancee whom he had never met but wished to marry here. The ground of refusal was that she would be a charge on public funds.
Held: The right to marry did not in principle include the right to choose the geographical location of the marriage and the refusal of entry was justified. The case did not involve a genuine marriage between two persons already in the jurisdiction.
(1983) 5 EHRR CD296, 9054/80, [1982] ECHR 15
Bailii
European Convention on Human Rights 8
Human Rights
Cited by:
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.272206

Kennedy v United Kingdom: ECHR 18 May 2010

The claimant complained that after alleging unlawful interception of his communications, the hearing before the Investigatory Powers Tribunal was not attended by appropriate safeguards. He had been a campaigner against police abuse. His requests to MI5 and GCHQ under the Data Protection Act 1998 to discover whether information about him was being processed had been refused on the grounds of national security. Complaints about such refusals to the Investigatory Powers Tribunal (‘IPT’) chaired by Lord Justice Mummery were examined in private. They concluded with the IPT simply notifying Mr Kennedy that no determination had been made in his favour in respect of his complaints. This ‘meant either that there had been no interception or that any interception which took place was lawful’.
Held: The claim under article 8 failed. The domestic law, practice and safeguards relating to surveillance satisfied the conditions of that article. Leander v Sweden established that the requirement that the consequences of the domestic law must be foreseeable, before any interference could be said to be ‘in accordance with the law’ under article 8(2), ‘cannot be the same in the context of interception of communications as in many other fields’.
As to Article 6, the Court found it unnecessary to decide whether this article applies to proceedings concerning a decision to put someone under surveillance, because it concluded that, assuming it does, the IPT’s rules of procedure complied with the requirements of article 6(1).
[2010] ECHR 682, 26839/05, [2011] 52 EHRR 4
Bailii
Regulation of Investigatory Powers Act 2000 65(2)(b) 65(4), European Convention on Human Rights 8 13, Data Protection Act 1998
Human Rights
Citing:
See Also – Kennedy v United Kingdom ECHR 20-Nov-2008
. .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Cited – Doorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
Cited – Jasper v The United Kingdom ECHR 16-Feb-2000
Grand Chamber – The defendants had been convicted after the prosecution had withheld evidence from them and from the judge under public interest immunity certificates. They complained that they had not had fair trials.
Held: The right was . .

Cited by:
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Secretary of State for The Home Department v Davis MP and Others CA 20-Nov-2015
The Secretary of State appealed against a ruling that section 1 of the 2014 Act was inconsistent wih European law.
Held: The following questions were referred to the CJEU:
(1) Did the CJEU in Digital Rights Ireland intend to lay down . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Privacy International, Regina (on The Application of) v Investigatory Powers Tribunal and Others SC 15-May-2019
The Court was asked whether the actions of the Investigatory Powers Tribunal were amenable to judicial review: ‘what if any material difference to the court’s approach is made by any differences in context or wording, and more particularly the . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.430517

A v United Kingdom: ECHR 1 Oct 1998

The beating of a child aged 9, by his father, with a cane repeatedly, and so as to leave bruising, was inhuman or degrading treatment or punishment, and was not capable of being reasonable chastisement. UK law failed properly to protect the child’s human rights. Articles 1 and 3 of the Convention, together, impose a positive obligation on the state to make provision through the criminal law for the protection of children and other vulnerable people against abuse that amounts to torture, inhuman or degrading treatment. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression ‘inhuman or degrading treatment’.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; Not necessary to examine Art. 8; Not necessary to examine Art. 13; Not necessary to examine Art. 14; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings
Times 01-Oct-1998, (1999) 27 EHRR 611, [1998] ECHR 85, 25599/94, [2009] ECHR 1690
Bailii, Bailii, Bailii
European Convention on Human Rights Art 3
Human Rights
Cited by:
Cited – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.77589

JP Whitter (Water Well Engineers) Ltd v Revenue and Customs: SC 13 Jun 2018

The taxpayers registration under the Construction Industry Scheme had been withdrawn. The Court was now asked whether HMRC are obliged, or at least entitled, to take into account the impact on the taxpayer’s business of the cancellation of its registration for gross payment.
Held: The company’s appeal failed: ‘the company’s submission comes down to a short point: that is, given the existence of a discretion in section 66, it must in the absence of any specific restriction be treated as an unfettered discretion. That to my mind overlooks the basic principle that any statutory discretion must be exercised consistently with the objects and scope of the statutory scheme.’
Lord Mance, Lord Sumption, Lord Carnwath, Lord Lloyd-Jones, Lord Briggs
[2018] UKSC 31, [2018] 1 WLR 3117, [2018] STI 1110, [2018] 4 All ER 95, [2018] STC 1394, [2018] WLR(D) 348, [2018] BTC 24, UKSC 2017/0016
Bailii, WLRD, Bailii ummary, SC, SC Summary, SC Video Summary, SC 10 May 2018 am Video, SC 10 May 2018 pm Video
Finance Act 2004, Income Tax (Construction Industry Scheme) Regulations 2005
England and Wales
Citing:
At FTTTx – J P Whitter (Waterwell Engineers) Ltd v Revenue and Customs FTTTx 18-Oct-2012
FTTTxp INCOME TAX – construction industry scheme – cancellation of gross payment status – s66 Finance Act 2004 – HMRC discretion – whether properly exercised – Failure to take into account effect of cancellation . .
At UTTC – Revenue and Customs v J P Whitter (Water Well Engineers) Ltd UTTC 13-Jul-2015
UTTC INCOME TAX – construction industry scheme – cancellation of gross payment status – s 66 Finance Act 2004 – HMRC discretion – scope of – whether properly exercised – failure to take into account effect of . .
At CA – J P Whitter (Waterwell Engineers) Ltd v HM Revenue and Customs CA 24-Nov-2016
Important point of principle concerning the power of HMRC, to cancel the registration of a taxpayer for gross payment under the legislation which governs the Construction Industry Scheme. . .
Cited – Shaw (Inspector of Taxes) v Vicky Construction Ltd ChD 6-Dec-2002
The General Commissioner had held that an inspector’s refusal to renew a certificate allowing the taxpayer construction company to pay its sub-contractors without deducting income tax, infringed that company’s rights. The inspector appealed.
Cited – Barnes (HMIT) v Hilton Main Construction ChD 15-Apr-2005
The revenue had refused to renew the respondent’s certificate, and now itself appealed against the contractor’ success on appeal to the General Commissioners. . .
Cited – Denley v Revenue and Customs UTTC 25-Aug-2017
Excise Duties . .
Cited – Regina v Barnsley Metropolitan Borough Council, ex parte Hook CA 1976
The applicant applied to have quashed the decision of the local council to exclude him from trading in the market and to revoke his right to have a stall.
Held: He succeeded on the grounds that the decision had been taken in breach of the . .
Cited – Gasus Dosier-Und Fodertechnik Gmbh v The Netherlands ECHR 23-Feb-1995
Even where an interference in property rights involved the complete loss of a person’s economic interest in an asset for the benefit of the State, an absence of compensation might still be compatible with Article 1. ‘The Court recalls that the . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – The National and Provincial Building Society, The Leeds Permanent Building Society And The Yorkshire Building Society v The United Kingdom ECHR 23-Oct-1997
ECHR United Kingdom – applicants’ legal claims to restitution of monies paid under invalidated tax provisions extinguished under the effects of retrospective legislation (section 53 of Finance Act 1991 and . .
Cited – Animal Defenders International v The United Kingdom ECHR 22-Apr-2013
ECHR (Grand Chamber) Article 10-1
Freedom of expression
Refusal of permission for non-governmental organisation to place television advert owing to statutory prohibition of political advertising: no . .
Cited – Lindsay v Commissioners of Customs and Excise CA 20-Feb-2002
The applicant was stopped at Customs carrying cigarettes over the quantity set for personal use. His car was seized, and Customs refused to return it. The cigarettes were for his own use and for sale to family members. He claimed the seizure was an . .
Cited – J A Pye (Oxford) Ltd v The United Kingdom ECHR 15-Nov-2005
The claimants had been the registered proprietors of land, they lost it through the adverse possession of former tenants holding over. They claimed that the law had dispossessed them of their lawful rights.
Held: The cumulative effect of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 July 2021; Ref: scu.617856

Mayeka and Mitunga v Belgium: ECHR 12 Oct 2006

A five-year-old child was detained by the Belgian authorities in an immigration centre.
Held: The court assessed the impact of the treatment on the applicant, stating that her position was: ‘characterised by her very young age, the fact that she was an illegal immigrant in a foreign land and the fact that she was unaccompanied by her family from whom she had become separated so that she was effectively left to her own devices. She was thus in an extremely vulnerable situation. In view of the absolute nature of the protection afforded by article 3 of the Convention, it is important to bear in mind that this is the decisive factor and it takes precedence over considerations relating to the second applicant’s status as an illegal immigrant. She therefore indisputably came within the class of highly vulnerable members of society to whom the Belgian state owed a duty to take adequate measures to provide care and protection as part of its positive obligations under article 3 of the Convention.’
13178/03, [2006] ECHR 1170
Bailii
European Convention on Human Rights
Human Rights
Cited by:
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.
Updated: 26 July 2021; Ref: scu.278341

Krastanov v Bulgaria: ECHR 30 Sep 2004

ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 3; Violation of Art. 6-1; Not necessary to examine P1-1; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings.
50222/99, [2004] ECHR 458, (2005) 41 EHRR 50
Worldlii, Bailii
Human Rights
Cited by:
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.
Updated: 26 July 2021; Ref: scu.227821

Opuz v Turkey: ECHR 9 Jun 2009

The applicant alleged, in particular, that the State authorities had failed to protect her and her mother from domestic violence, which had resulted in the death of her mother and her own ill-treatment.
Josep Casadevall, P
33401/02, [2009] ECHR 870, (2010) 50 EHRR 28, 27 BHRC 159
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
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.
Updated: 26 July 2021; Ref: scu.347003

In The Petition of The Christian Institute and Others for Judicial Review of The Children and Young People (Scotland) Act 2014: SCS 22 Jan 2015

The claimants challenged the 2014 Act saying that in appointing a nominated professional individual for every child, the human rights of the family had been disproportionately interfered with.
[2015] ScotCS CSOH – 7
Bailii
Children and Young People (Scotland) Act 2014
Scotland
Cited by:
Appeal from – The Christian Institute, Family Education Trust and similar, Mcintosh and Thomas v The Scottish Minister SCS 3-Sep-2015
(Second Division, Inner House) The petitioning charities challenged the validity of the 2014 Act saying that it was an unwarranted intrusion on the private lives of families in Scotland. . .
At Outer House – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2021; Ref: scu.541993

P and S v Poland: ECHR 30 Oct 2012

P aged 14 became pregnant due to rape, evidenced by bruises. Polish law permitted an abortion in such circumstances, but the reality of its practical implementation was in striking discordance with the theoretical right. P was given contradictory information and was subject to religious pressure, medical procrastination, combined with the release by a hospital of information to the national press, exposing P to public comments, unwanted and intrusive text messages from unknown persons and harassment by anti-abortion activists. The Lublin Family Court even removed P from the custody of her mother (S), on the (unfounded) basis that her mother was pressurising her to have an abortion contrary to her wishes, and put her in a juvenile shelter. Eventually, after S complained to the Ministry of Justice, she was informed that P could have an abortion in Gdansk, 500 kilometres away. S and P drove there clandestinely and the abortion was carried out on 17 June 2008. Nonetheless, in July 2008 criminal proceedings were begun against P on suspicion of unlawful sexual intercourse with a minor under 15. These proceedings were only dismissed in November 2008 on the basis that P was the victim, not the perpetrator.
Held: The Court focused on P’s great vulnerability, her young age, the extent to which she had been pressurised and exposed to unwanted public attention, the misguided criminal proceedings commenced against her, and procrastination, confusion and lack of proper and objective counselling and information throughout; and on that basis found a breach of article 3.
57375/08 – HEJUD, [2012] ECHR 1853
Bailii
European Convention on Human Rights 3
Human Rights
Cited by:
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.
Updated: 26 July 2021; Ref: scu.465574

Sumukan Ltd v The Commonwealth Secretariat: CA 21 Mar 2007

The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Held: The Court of Appeal did have jurisdiction. The argument that it did not was in practice circular, and ‘although there might be a temptation (in the interest of speed and saving expense) to construe any part of the language of the 1996 Act in a way that renders all decisions under the various sections where permission of the court is required as final, if the first instance court so rules, there is a distinction between those cases where the court is assisting or overseeing the arbitration process and the cases where the question is whether the jurisdiction of the court has been excluded. ‘
Waller LJ, Clarke MR, Sedley LJ
[2007] EWCA Civ 243, Times 13-Apr-2007, [2007] 2 All ER (Comm) 23, [2007] 3 All ER 342, [2007] 2 Lloyd’s Rep 87, [2007] Bus LR 1075, [2007] 1 CLC 282, [2007] ArbLR 56
Bailii
Arbitration Act 1979
England and Wales
Citing:
Cited – Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited CA 25-May-2000
Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to . .
Appeal from – Sumukan Ltd v Commonwealth Secretariat ComC 14-Feb-2007
The claimant had created a web-site for the defendant. The claimant sought to appeal an arbitration award. . .
Cited – Athletic Union of Constantinople v National Basketball Association and Others CA 28-May-2002
A party had been refused leave to appeal against an arbitration under the Act by the judge, but later obtained leave to appeal.
Held: Such leave could only be granted by the trial judge, and the Court of Appeal could set aside the leave . .
Cited – ASM Shipping Ltd of India v TTMI Ltd of England CA 16-Oct-2006
The court at first instance had dismissed the ship-owner’s application to set aside the arbitration award, and then refused leave to appeal. The court of appeal had to consider whether it had jurisdiction itself to hear an application for leave.
Cited – Cetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Cited – Arab African v Olieprodukten 1983
By section 3(1) of the 1979 Act, the High Court was precluded from granting permission to appeal on a point of law from an award ‘if the parties to the reference in question have entered into an agreement in writing (in this section referred to as . .
Cited – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA 1988
The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Czarnikow v Roth Schmidt and Co 1922
It is aganst public policy to allow the parties to seek to oust the jurisdiction of the court. An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to . .
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.250453