Tag: Human Rights

South Coast Shipping v Havant Borough Council; 21 Dec 2001

References: [2002] 3 All ER 779, [2001] EW Costs 16, [2001] EWHC 9017 (Costs)
Links: Bailii
Coram: Mr Justice Pumfrey sitting with Assessors
With respect to privileged material produced to the Costs Judge, once a document is of sufficient importance to be taken into account in arriving at a conclusion as to recoverability, then, unless otherwise agreed, it must be shown to the paying party or the receiving party must content himself with other evidence. If the costs judge has seen documents and required the receiving party to elect between giving secondary evidence of the retainer and waiving the privilege, there was no incompatibility with the Convention. This does not mean the costs judge may put the receiving party to its election for every document, regardless of relevance. The paying party may be content to agree that the costs judge alone should see the privileged documents. Only where it is necessary and proportionate should the receiving party be put to his election. The redaction and production of privileged documents, or the adducing of further evidence, will lead to additional delay and increased costs.
CourtService The court considered the impact on detailed assessment proceedings of the European Convention on Human Rights, with particular relevance to the disclosure to the paying party of sensitive material relating to their bill of costs to which privilege attached. The European cases did not override the longstanding principle of privilege in English law, but the principle that a court should not decide issues after hearing and seeing only one side of the argument was a very powerful one. He indicated that much greater use should be made of Costs Judges and District Judges of paragraph 40.14 of the Costs Practice Direction in relation to the putting of receiving parties to their election as to how they proved particular issues of this nature.
However, on the facts, and because the Costs Judge from whom the appeal was brought had clearly considered all the relevant factors in coming to his decision that there had been no breach of the indemnity principle on the evidence available to him, the Judge dismissed the appeal, saying that to do otherwise would be to generate unfortunate and unnecessary satellite litigation.
This case is cited by:

  • Approved – Hollins -v- Russell etc CA (Bailii, [2003] EWCA Civ 718, Times 10-Jun-03, Gazette 17-Jul-03, [2003] 1 WLR 2487)
    Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
    Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .

Last Update: 01-Oct-15 Ref: 182521

Fleurose v The Securities and Futures Authority Ltd, The Disciplinary Appeal Tribunal of the Securities and Futures Authority Ltd: CA 21 Dec 2001

References: Times 15-Dec-2001, [2001] EWHC Admin 1085, [2001] EWCA Civ 2015, [2002] IRLR 297
Links: Bailii, Bailii
Coram: Lord Justice Schiemann, Lord Justice Clarke, And, Mr. Justice Wall
The applicant sought to challenge a decision suspending him from authorisation to act as a financial adviser. He was alleged to have sought to affect the Index of share values in order that his company should not be liable under certain options. He said the decision was in effect a criminal decision.
Held: It was not a criminal charge. Applying the principles set out in Human Rights case law, the proceedings were not sufficiently serious to take the case to that point. Nevertheless some aspects of the right to a fair trial might apply under article 6. The appellant knew the basis of the allegation against him, and decisions made by him as to the conduct of his defence made the question of free legal representation irrelevant. Because the charge was not criminal evidence obtained under compulsion was admissible.
Schiemann LJ said: ‘It is common ground between the parties, and we are content to accept, that the Disciplinary Tribunal was involved in the determination of M Fleurose’s civil rights for the purposes of Article 6. Therefore clearly the proceedings had to be fair. We accept for present purposes, as did the judge, that it was for the SFA to prove their case, that the SFA had to inform M Fleurose in good time of the nature of the charges, that he must have adequate time and facilities to prepare his defence, a proper opportunity to give and call evidence and question those witnesses called against him. What fairness requires will vary from case to case and manifestly the gravity and complexity of the charges and of the defence will impact on what fairness requires. In this context we have born in mind, as did the judge, the points made by the Human Rights Court in Paragraphs 30 and 39 of Albert & Le Compte v Belgium, and in paragraphs 32 and 33 of Dombo Beheer BV v The Netherlands [1993] 18 EHRR 213.’
Statutes: European Convention on Human Rights Art 6
This case cites:

This case is cited by:

  • Cited – G, Regina (on The Application of) -v- X School and Others CA (Bailii, [2010] EWCA Civ 1, [2010] WLR (D) 4, WLRD, Times, [2010] ELR 235, [2010] UKHRR 584, [2010] HRLR 13, [2010] Med LR 45, [2010] WLR 2218, [2010] BLGR 207, [2010] 2 All ER 555, [2010] IRLR 222, [2010] 1 WLR 2218)
    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 . .

Last Update: 01-Oct-15 Ref: 167307

Carter v Canada (Attorney General); 15 Jun 2012

Links: Canlii
Coram: The Honourable Madam Justice Lynn Smith
Supreme Court of British Columbia – [1] The plaintiffs have challenged the Criminal Code of Canada provisions prohibiting physician-assisted dying, relying on the Canadian Charter of Rights and Freedoms. In the Reasons for Judgment that follow, I describe the evidence and legal arguments that have led me to conclude that the plaintiffs succeed in their challenge. They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Gloria Taylor, Lee Carter and Hollis Johnson.
[2] Under s. 52 of the Constitution Act, the provisions are declared invalid, but the operation of that declaration is suspended for one year. During the period of suspension, a constitutional exemption will permit Ms. Taylor the option of physician-assisted death under a number of conditions.
[3] I will summarize, in brief, my findings of fact and legal reasoning.
[4] Palliative care, though far from universally available in Canada, continues to improve in its ability to relieve suffering. However, even the very best palliative care cannot alleviate all suffering, except possibly through sedation to the point of persistent unconsciousness (palliative sedation).
[5] Currently accepted and legal end-of-life practices in Canada allow physicians to follow patients’ or substitute decision-makers’ instructions to withhold or withdraw life-sustaining treatment from patients. Accepted practices also allow physicians to administer medications even in dosages that may hasten death, and to administer palliative sedation. Ethicists and medical practitioners widely concur that current legal end-of-life practices are ethically acceptable. Some of these currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing.
[6] Medical practitioners disagree about the ethics of physician-assisted death. There are respected practitioners who would support legal change. They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views. However, other practitioners and many professional bodies, including the Canadian Medical Association, do not support physician-assisted death.
[7] Despite a strong societal consensus about the extremely high value of human life, public opinion is divided regarding physician-assisted death. The substantial majority of committees that have studied the question, in Canada and elsewhere, oppose physician-assisted death but a minority support it.
[8] The most commonly expressed reason for maintaining a distinction between currently accepted end-of-life practices and physician-assisted death is that any system of safeguards will not adequately protect vulnerable people.
[9] Most Western countries do not permit physician-assisted dying or assisted dying, but a few do (Netherlands, Belgium, Luxembourg and Switzerland). Three of the United States permit physician-assisted dying, in the case of Oregon and Washington through legislation. The jurisdictions that permit physician-assisted dying have created safeguards to ensure that only defined categories of patients are involved, and that protocols including second opinions and reporting requirements are followed. Research findings show differing levels of compliance with the safeguards and protocols in permissive jurisdictions. No evidence of inordinate impact on vulnerable populations appears in the research. Finally, the research does not clearly show either a negative or a positive impact in permissive jurisdictions on the availability of palliative care or on the physician-patient relationship.
[10] The defendants identify a number of areas of risk for patients if physician-assisted death is permitted, for example relating to the patients’ ability to make well-informed decisions and their freedom from coercion or undue influence, and to physicians’ ability to assess patients’ capacity and voluntariness. The evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards.
[11] I turn to the legal issues.
[12] The Supreme Court of Canada Rodriguez decision from 1993 is a binding authority with respect to certain aspects of the plaintiffs’ claims.
[13] Rodriguez decides that s. 241(b) of the Criminal Code (the assisted suicide prohibition) engages Ms. Taylor’s rights to security of the person and liberty under s. 7 of the Charter, and that the legislation is not arbitrary. It leaves open whether the legislation infringes Ms. Taylor’s right to life. Further, it does not decide whether any of the plaintiffs has been deprived of s. 7 rights through legislation that is not in accordance with two principles of fundamental justice that had not yet been identified as such when Rodriguez was decided. Those are the principles that laws must not be overbroad, and that laws must not be grossly disproportionate.
[14] Rodriguez does not determine whether s. 241(b) of the Criminal Code infringes Ms. Taylor’s equality rights under s. 15 of the Charter. The majority in Rodriguez concluded that, if there was an infringement of s. 15 (a question it did not decide), the infringement constituted a reasonable limit and was demonstrably justified under s. 1 of the Charter. Because the analytical approach to s. 1 of the Charter has been modified since Rodriguez, I have addressed the question of s. 1 justification on the evidentiary record in this case.
[15] The claim that the legislation infringes Ms. Taylor’s equality rights begins with the fact that the law does not prohibit suicide. However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) prohibits assisted suicide. The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives. The distinction is discriminatory, under the test explained by the Supreme Court of Canada in Withler, because it perpetuates disadvantage.
[16] The legislation’s infringement of s. 15 equality rights is not demonstrably justified under s. 1 of the Charter. The purpose of the absolute prohibition against physician-assisted suicide, as determined by Rodriguez, is to prevent vulnerable persons from being induced to commit suicide at times of weakness. That purpose is pressing and substantial and the absolute prohibition against assisted suicide is rationally connected to it. However, a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation – grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress – to access physician-assisted death. Thus, the legislation does not impair Ms. Taylor’s equality rights as little as possible. Further, the legislation has very severe adverse effects on Ms. Taylor and others in her situation, that are not outweighed by its benefits. For those reasons, and despite affording due deference to Parliament, I conclude that the legislation’s absolute prohibition falls outside the bounds of constitutionality.
[17] The claimed infringement of s. 7 rights differs as among the plaintiffs. With respect to Ms. Taylor, the legislation affects her rights to liberty and security of the person, as was found in Rodriguez. In addition, the legislation affects her right to life because it may shorten her life. Ms. Taylor’s reduced lifespan would occur if she concludes that she needs to take her own life while she is still physically able to do so, at an earlier date than she would find necessary if she could be assisted. With respect to Ms. Carter and Mr. Johnson, the legislation affects their rights to liberty because they are at risk of incarceration, at least in theory, for having helped a loved one who obtained assisted death in Switzerland.
[18] The legislation deprives the plaintiffs of their s. 7 rights inconsistently with the principles of fundamental justice. First, the legislation is overbroad. Second, the legislative response – an absolute prohibition – is grossly disproportionate to the objectives it is meant to accomplish. As with the s. 15 infringement, the s. 7 infringement would not be justified under s. 1.
[19] The declaration of invalidity is suspended for one year in order to permit Parliament to take whatever steps it sees fit to draft and consider legislation. For one of the successful plaintiffs, Gloria Taylor, to have an effective remedy, she must be granted a constitutional exemption during the period of suspension. She will be permitted to seek, and her physician will be permitted to proceed with, physician-assisted death under specified conditions.

Regina v Ashworth Special Hospital Trust, ex parte Munjaz; 10 Oct 2000

References: [2000] MHLR 183
Coram: Jackson J
The claimant was detained iin a secure mental hospital. He complained of being held in seclusion for a long period, and as to the hospital’s policy.
Held: The hospital’s policy, by reducing the frequency of review of a patient’s seclusion below that provided for in the Code of Practice, was unlawful and was not justified by the fact that the hospital was a maximum secure hospital. In particular, the failure after the third day of seclusion to have twice-daily medical reviews of the continuation of seclusion was not justified.
The Code of Practice for Seclusions issued under the Act was directed at all seclusions, including those lasting more than three days. A departure would be lawful only if justified by ‘a good reason arising from the particular circumstances at Ashworth hospital. There was no justification for abandoning the requirement that one of the nurses reviewing the seclusion was not involved in the original decision to seclude, which should apply ‘where practicable’. The policy of reducing medical reviews to one per day was too great a departure from the Code but twice daily reviews after the patient had been secluded for three days would be appropriate. He granted a declaration that ‘a. the Ashworth Special Hospital Authority Seclusion Procedure is unlawful in that it does not require one of the nurses who carries out the 2 hourly review to be independent from the initial decision to seclude, and that it reduces the frequency of review by a doctor after a patient has been secluded for more than 24 hours b. the Ashworth Special Hospital Authority Seclusion Guidance at paragraph 6.8.1. is unlawful for the reasons set out at Part 3 of the judgment.’
Statutes: Mental Health Act 1983
This case is cited by:

MGN Ltd v Attard; 19 Oct 2001

References: Unreported, 19 October 2001
Coram: Connell J
Complaint was made about the publication of photographs of the survivor of conjoined twins who was only one year old. The photographs were taken in a street in Malta but followed the earlier publication of photographs and press articles based on interviews which the child’s parents gave in order to raise money for her care.
Held: The photograph constituted at most a minimal breach of the right to privacy given the innocuous nature of the photographs and the fact that they would not enable the reader to make a subsequent identification of the child. The court doubted whether Article. 8 was engaged at all given the public nature of the area where they were taken.
Statutes: European Convention on Human Rights 8
This case is cited by:

  • Cited – Murray -v- Express Newspapers Plc and Another ChD (Bailii, [2007] EWHC 1908 (Ch), Times 04-Oct-07, [2008] 1 WLR 2846)
    The claimant, now aged four and the son of a famous author, was photographed by use of a long lens, but in a public street. He now sought removal of the photograph from the defendant’s catalogue, and damages for breach of confidence.
    Held: The . .
  • Cited – Murray -v- Big Pictures (UK) Ltd; Murray -v- Express Newspapers CA (Bailii, [2008] EWCA Civ 446, [2008] 3 WLR 1360, [2008] HRLR 33, [2008] UKHRR 736, [2008] 2 FLR 599, [2008] 3 FCR 661, [2008] ECDR 12, [2008] EMLR 1, [2008] Fam Law 732, [2009] Ch 481)
    The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .

Regina v Secretary of State ex parte Toner and Walsh; NIQB 1997

References: [1997] NIQB 18
The claimants sought damages saying that the respondent had infringed their human rights in removing their right to vote in an election whilst serving prison sentences.
This case is cited by:

  • Cited – Tovey and Others -v- Ministry of Justice QBD (Bailii, [2011] EWHC 271 (QB))
    The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.

West Virginia State Board of Education v Barnette; 14 Jun 1943

References: (1943) 319 US 624, [1943] USSC 130, 63 SCt 1178, 87 LEd 1628
Links: Worldlii
Coram: Jackson J
(United States Supreme Court) Jackson J said: ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion to force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.’
This case is cited by:

A Local Authority v K; COP 15 Feb 2013

References: [2013] EWHC 242 (COP)
Links: Bailii
Coram: Cobb J
K was a young lady llivng amid her family with Downs syndrome. The family were thought too want her to be sterilised. The local authority applied to the court to determine whether this should be prevented. It was agreed that she was not currently sexually active and that there was no health condition requiring it.
Held: K would not have capacity to understand and weigh up the immediate medical issues, she lacks capacity in this regard and the court therefore considered making a decision in her best interests.
Cobb J said: ‘it is my judgment that sterilisation would be a disproportionate (and not the least restrictive) step to achieve contraception for K in the future (absent significant change in her circumstances). Plainly risk management is better than invasive treatment, it is less restrictive. Moreover, I am persuaded . . that there are less restrictive methods of achieving the purpose of contraception than sterilisation, and that in the event of a need for contraception, these ought to be attempted.’
Statutes: Mental Capacity Act 2005, European Convention on Human Rights 8
This case cites:

Minister for Immigration and Multicultural Affairs v Ibrahim; 1 Oct 2000

References: (2000) 204 CLR 1, [2000] HCA 55
Coram: Gummow J
(High Court of Australia) The court recognised a right in sovereign states to give refuge to aliens fleeing from foreign persecution and to refuse to surrender such persons to the authorities of their home states: ‘there have been attempts which it is unnecessary to recount here to broaden the scope of the Convention itself by a Draft United Nations Convention on Territorial Asylum but these collapsed more than twenty years ago.’
This case is cited by:

Pushpanathan v Canada (Minister of Citizenship and Immigration); 3 Sep 2002

References: [2002] FCJ No 1207, 2002 FCT 867
Links: UNCHR
Coram: Blais J
FCC (Federal Court of Canada – Trial Division) – Application by Pushpanathan for judicial review of a decision of the Convention Refugee Determination Division that he was not a Convention refugee. Pushpanathan was a Tamil citizen of Sri Lanka. He alleged that he was persecuted on the basis of his political opinions and was detained after participating in a political demonstration. While in Canada, Pushpanathan was convicted of conspiracy to traffic heroine along with five other Tamils and served over two years in a federal penitentiary. At his first hearing, the Refugee Division found that the conviction excluded him from refugee status because it was contrary to the purposes and principles of the United Nations. On appeal, the court ordered a new hearing. At the second hearing, the Refugee Division found that Pushpanathan was excluded from refugee protection on the basis of his involvement in crimes against humanity and terrorist activities associated with the Liberation Tigers of Tamil Eelam.
HELD: Application dismissed. The standard of review was less than a balance of probabilities. The Refugee Division correctly concluded that the Liberation Tigers was a terrorist organization. Through the trafficking of narcotics, Pushpanathan was complicit in supporting the Liberation Tigers and demonstrated a personal knowing participation and common purpose with the Tigers.
This case is cited by:

  • Cited – Al-Sirri -v- Secretary of State for The Home Department SC (Bailii, [2012] UKSC 54, [2012] 3 WLR 1263, [2012] WLR(D) 333, Bailii Summary, UKSC 2009/0036, SC Summary, SC, [2013] 1 AC 745, [2013] 1 All ER 1267)
    The appellants had been refused refugee status on the ground that they were suspected of having been guilty of terrorist acts. They said that the definition of terrorism applied within the UK was wider than that in the Convention which contained the . .

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; 9 Dec 2003

References: [2003] HCA 71, [2003] 216 CLR 473, [2003] 203 ALR 112, [2003] 78 ALJR 180
Links: Austlii
Coram: McHugh, Kirby JJ
(High Court of Australia) McHugh and Kirby JJ said: ‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.’
This case is cited by:

Miranda v Arizona; 10 Oct 1966

References: (1966) 384 US 436, [1966] USSC 143, (1966) 86 SCt 1602, (1966) 16 LEd2d 694
Links: Worldlii
Coram: Warren CJ
(United States Supreme Court) The prosecution may not use statements, whether incriminatory or exculpatory, stemming from custodial interrogation of a defendant unless it demonstrated the use of procedural safeguards which were sufficient to secure the privilege against self-incrimination. These safeguards require that, unless other fully effective means are devised to inform the accused person of the right to silence and to assure continuous opportunity to exercise it, he must be warned that he has a right to remain silent, that any statement that he does make may be used as evidence against him, that he has the right to consult with an attorney and that, if he cannot afford one, a lawyer will be appointed to represent him. ‘Custodial interrogation’ for the purposes of this rule means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
This case is cited by:

  • Cited – Imbrioscia -v- Switzerland ECHR (Bailii, [1993] ECHR 56, 13972/88, ECHR, (1994) 17 EHRR 441, Bailii)
    The applicant had been questioned several times without access to a lawyer while he was in police custody.
    Held: Overall there had been no breach of article 6(1). The right set out in article 6(3)(c) is one element, among others, of the . .
  • Cited – Galstyan -v- Armenia ECHR (26986/03, Bailii, [2007] ECHR 936, (2007) 50 EHRR 618)
    The claimant had been was arrested on his way home from a protest rally. He was made aware of his rights and expressly declined a lawyer.
    Held: As it was his own choice not to have a lawyer, the authorities could not be held responsible for . .
  • Cited – Ambrose -v- Harris, Procurator Fiscal, Oban, etc SC (Bailii, [2011] UKSC 43, Bailii Summary, SC Summary, SC, UKSC 2011/0101, 2011 SLT 1005, [2011] 1 WLR 2435)
    (Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
  • Cited – Murray -v- The United Kingdom ECHR (Times 09-Feb-96, 18731/91, [1996] ECHR 3, (1996) 23 EHRR 313, [1996] 22 EHRR 29, Bailii)
    The applicant had been denied legal advice for 48 hours after he had been taken into custody.
    Held: There had been a violation of article 6(1) read with article 6(3)(c). However, it was not a breach of human rights to draw inferences from the . .
  • Considered – JDB -v- North Carolina (USSC, LII, 09-11121)
    (United States Supreme Court) The court considered the applicability of Miranda protection to a police interview of a minor. . .
  • Cited – McGowan (Procurator Fiscal) -v- B SC (Bailii Summary, Bailii, [2011] UKSC 54, SC, SC Summary, UKSC 2011/0201, [2011] 1 WLR 3121, 2012 SLT 37, 2012 SCCR 109, 2012 SCL 85)
    The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
    Held: It was not incompatible with . .

‘Iza’ Ltd And Makrakhidze v Georgia: ECHR 8 Aug 2011

References: [2011] ECHR 1649
Links: Bailii
This case cites:

  • See Also – Iza Ltd And Makrakhidze -v- Georgia ECHR (28537/02, Worldlii, [2005] ECHR 641, Bailii)
    ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Violation of Art. 13; Violation of P1-1; Remainder inadmissible; Pecuniary damage – financial award; Non-pecuniary damage – financial award; . .

AHE Leeds Teaching Hospitals NHS Trust v A, A, YA and, ZA (By Their Litigation Friend, the Official Solicitor), the Human Fertilisation and Embryology Authority B, B: QBD 26 Feb 2003

References: [2003] EWHC 259 (QB), Gazette 01-May-2003, [2003] 1 FLR 1091
Links: Bailii
Coram: The President
An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents had been given, and the concept under the Act of ‘treatment together’. Any interference with the right to family life was proportionate and necessary.
Statutes: Family Law Act 1986 55A, Human Fertilisation and Embryology Act 1990 28 29
This case cites:

  • Cited – U -v- W (Attorney-General Intervening) FD (Gazette 19-Mar-97, Times 04-Mar-97, [1998] Fam 29, [1997] 2 FLR 282)
    The restriction on the freedom to provide human fertility treatment to licensees of the Authority was not a breach of the EU treaty. There is a particular need for certainty in provisions affecting the status of a child. There is a mental element . .
  • Cited – Pepper (Inspector of Taxes) -v- Hart HL (lip, [1992] 3 WLR 1032, [1993] AC 593, [1993] 1 All ER 42, Bailii, [1992] UKHL 3)
    The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
  • Cited – Marckx -v- Belgium ECHR (6833/74, (1979) 2 EHRR 330, Bailii, [1979] ECHR 2)
    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 – Kroon And Others -v- The Netherlands ECHR (18535/91, (1995) 19 EHRR 263, Bailii, [1994] ECHR 35, ECHR, , Bailii, [1995] 2 FCR 28)
    Neither marriage nor living together were necessarily a requirement for establishing family ties, exceptionally other factors may . . serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’. The . .
  • Cited – Re B (Parentage) FD ([1996] 2 FLR 15)
    A mother applied for financial provision for her twin children under 1989 Act Sch 1. The father asked whether he was their parent within the Schedule. They had been born by artificial insemination. He accepted that he was the donor of the sperm and . .
  • Cited – Regina -v- Human Fertilisation and Embryology Authority ex parte DB CA (Times 07-Feb-97, Bailii, [1997] EWCA Civ 946, [1997] 2 WLR 806, Bailii, [1997] EWCA Civ 3092, [1999] Fam 151, Bailii, [1997] EWCA Civ 4003)
    At the applicant’s request samples of sperm were taken from her husband hours prior to his death, when he was in a coma.
    Held: Sperm cannot lawfully be taken from a comatose man in order later to allow his surviving wife to be artificially . .
  • Cited – McMichael -v- United Kingdom ECHR (Times 02-Mar-95, (1995) 20 EHRR 205, Bailii, 16424/90, ECHR, , Bailii, [1995] ECHR 8)
    In the course of care proceedings, medical and social services’ reports were disclosed to the courts, but not to the parents involved.
    Held: The courts’ failure to show reports to the parents in care proceedings was a breach of the Convention. . .
  • Cited – Re H; Re G (Adoption: Consultation of Unmarried Fathers) CA ([2001] 1 FLR 646)
    Not every natural father has a right to respect for his family life with regard to every child of whom he may be the father (see also McMichael v United Kingdom (1995) 20 EHRR 205). The application of Art 8(1) will depend upon the facts of each . .
  • Cited – Re S (Freeing for Adoption) CA ([2002] 2 FLR 681, [2002] EWCA Civ 798)
    If parliament always foresaw what possibilities might arise, courts would never have anything to interpret. . .
  • Cited – Mrs U -v- Centre for Reproductive Medicine CA ([2002] EWCA Civ 565)
    The 1990 Act lays great emphasis upon consent. Scientific techniques developed since the first IVF baby open up the possibility of creating human life in quite new ways bringing huge practical and ethical difficulties. These have to be balanced . .
  • Cited – Mikulic -v- Croatia ECHR (53176/99, Bailii, [2002] ECHR 27, Bailii, ECHR 2002-I)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Violation of Art. 8; Violation of Art. 13 with regard to the complaint under Article 6-1; Not necessary to examine Art. 13 with regard to the . .
  • Cited – Re R (A Child) CA (Bailii, [2003] EWCA Civ 182)
    . .
  • Cited – Regina (Rose and Another) -v- Secretary of State for Health and the Human Fertilisation and Embryology Authority Admn (Times 22-Aug-02, Bailii, Gazette 10-Oct-02, [2002] EWHC 1593 (Admin))
    Applications were made, challenging the refusal of the Secretary of State for Health, and the Human Fertilisation and Embryology Authority, to institute a system where a child born by artificial insemination could make enquiries as to his or her . .
  • Cited – Johansen -v- Norway ECHR (17383/90, (1997) 23 EHRR 33, Bailii, [1996] ECHR 31, ECHR, , Bailii)
    The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
    Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
  • See also – Leeds Teaching Hospitals NHS Trust -v- Mr & Mrs A, YA, ZA, Mr & Mrs B T Authority QBD ([2003] 1 FLR 412)
    At a fertility clinic, eggs were fertilised with the sperm from the wrong father. It was noticed only because after the birth of the twins, the colour of their skin was different from the mother and putative father.
    Held: Difficult issues of . .

This case is cited by:

Regina v NS; 20 Dec 2012

References: [2012] 3 SCR 726, 2012 SCC 72
Links: Canlii
Coram: McLachlin CJ and LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ
Canlii Charter of Rights – Freedom of religion – Right to fair hearing – Right to make full answer and defence – Muslim witness at preliminary hearing in sexual assault trial wanting to testify with her face covered by niqab – Whether requiring witness to remove the niqab while testifying would interfere with her religious freedom -Whether permitting her to wear niqab while testifying would create a serious risk to trial fairness – Whether both rights could be accommodated to avoid conflict between them – If not, whether salutary effects of requiring the witness to remove niqab outweigh deleterious effects – Canadian Charter of Rights and Freedoms, ss. 2(a), 7, 11(d).
Criminal law – Evidence – Cross-examination – Muslim witness at preliminary hearing in sexual assault trial wanting to testify with her face covered by niqab – Whether permitting her to wear niqab while testifying would create a serious risk to trial fairness.

Regina v Grant; 17 Jul 2009

References: 2009 SCC 32, [2009] 2 SCR 353, 309 DLR (4th) 1, 245 CCC (3d) 1, 66 CR (6th) 1, 253 OAC 124
Links: Canlii
Coram: McLachlin CJ and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ
Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Arbitrary detention – Right to counsel – Encounter between accused and police going from general neighbourhood policing to situation where police effectively took control over accused and attempted to elicit incriminating information – Whether police conduct would cause a reasonable person in accused’s position to conclude that he or she was not free to go and had to comply with police demand – Whether accused arbitrarily detained – Whether accused’s right to counsel infringed – Meaning of ‘detention’ in ss. 9 and 10 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Enforcement – Exclusion of evidence – Firearm discovered as result of accused’s statements taken in breach of his right against arbitrary detention and right to counsel – Firearm admitted into evidence at trial and accused convicted of five firearms offences – Whether admission of firearm bringing administration of justice into disrepute – Revised framework for determining whether evidence obtained in breach of constitutional rights must be excluded – Canadian Charter of Rights and Freedoms, s. 24(2).
Criminal law – Firearms – Possession of firearm for purposes of weapons trafficking – Whether simple movement of firearm from one place to another without changing hands amounts to weapons trafficking – Meaning of ‘transfer’ of weapon for purposes of ss. 84, 99 and 100 of Criminal Code, R.S.C. 1985, c. C-46.
This case is cited by:

  • Cited – Ambrose -v- Harris, Procurator Fiscal, Oban, etc SC (Bailii, [2011] UKSC 43, Bailii Summary, SC Summary, SC, UKSC 2011/0101, 2011 SLT 1005, [2011] 1 WLR 2435)
    (Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .

Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component; 10 Jul 2009

References: [2009] 2 SCR 295, 309 DLR (4th) 277, 2009 SCC 31, [2009] 8 WWR 385, 272 BCAC 29, 389 NR 98, 93 BCLR (4th) 1, EYB 2009-161351, JE 2009-1320, [2009] SCJ No 31 (QL), 179 ACWS (3d) 98, 192 CRR (2d) 336
Links: Canlii
Coram: McLachlin CJ and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Application of Charter – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Actions brought alleging that transit authorities’ policies violated freedom of expression – Whether entities which operate public transit systems ‘government’ within meaning of s. 32 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Freedom of expression – Advertisements on buses – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Whether advertising policies infringing freedom of expression – If so, whether infringement can be justified – Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Constitutional law – Charter of Rights – Reasonable limits prescribed by law – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies infringing freedom of expression -Whether policies are ‘law’ within meaning of s. 1 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Remedy – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies unjustifiably infringing freedom of expression – Declaration that policies are of ‘no force or effect’ sought – Whether declaration ought to be based on s. 52 of Constitution Act, 1982 or s. 24(1) of Canadian Charter of Rights and Freedoms – Whether policies are ‘law’ within meaning of s. 52 of Constitution Act, 1982.

SCP Huglo, Lepage and Associes, Conseil v France: ECHR 1 Feb 2005

References: 59477/00, [2005] ECHR 50
Links: Worldlii, Bailii
ECHR Ratio Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses (domestic proceedings) – claim dismissed; Costs and expenses partial award – Convention proceedings.
Last Update: 17-Mar-16 Ref: 227597

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh; 7 Apr 1995

References: (1995) 128 ALR 353, [1995] HCA 20, (1995) 69 ALJR 423, (1995) 183 CLR 273
Links: Austlii
Coram: Deane, Toohey, Gaudron, McHugh JJ
Austlii (High Court of Australia) International Law – Treaties – Convention ratified by Australia but not implemented by statute – Status in domestic law – Whether giving rise to legitimate expectations.
Immigration – Application for permanent entry – Applicant – Married man with children in Australia – Policy requirement that applicants be of good character – Applicant convicted and imprisoned before application dealt with – Application refused because of conviction – Convention requiring governmental actions concerning children to give primary consideration to best interests of child – Convention ratified by Australia but not incorporated by statute in Australian domestic law -Whether capable of giving rise to legitimate expectation that application would be dealt with in accordance with Convention – Convention on Rights of Child, Art 3 – Migration Act 1958 (Cth), ss 6(2), 6A(1), 16(1)(c).
This case is cited by:

  • Cited – ZH (Tanzania) -v- Secretary of State for The Home Department SC ([2011] 1 FCR 221, [2011] 2 WLR 148, Bailii, [2011] UKSC 4, Bailii Summ, UKSC 2010/0002, SC, SC Summary, [2011] Fam Law 468, [2011] 2 AC 166)
    The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .

Wan v Minister for Immigration and Multi-cultural Affairs; 18 May 2001

References: [2001] FCA 568
Links: Austlii
Coram: Branson, North and Stone JJ
(Federal Court of Australia) The law required the Tribunal, in determining whether to confirm the refusal to grant a visa to Mr Wan, to treat the best interests of any child affected by its decision as a primary consideration: ‘[The Tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.’
This case is cited by:

  • Cited – ZH (Tanzania) -v- Secretary of State for The Home Department SC ([2011] 1 FCR 221, [2011] 2 WLR 148, Bailii, [2011] UKSC 4, Bailii Summ, UKSC 2010/0002, SC, SC Summary, [2011] Fam Law 468, [2011] 2 AC 166)
    The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .

President of the Republic of South Africa v South African Rugby Football Union; 4 Jun 1999

References: [1999] ZACC 9, [1999] 4 SA 147
Links: SAFLii
Constitutional Court of South Africa – The court considered an allegation of bias in the judge, it being said that they should have recused themselves: ‘The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training ad experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.’
This case is cited by:

  • Cited – O’Neill -v- Her Majesty’s Advocate No 2 SC (Bailii, [2013] UKSC 36, [2013] 2 Cr App R 34, [2013] HRLR 25, [2013] 1 WLR 1992, 2013 SCL 678, 2013 SLT 888, 2013 GWD 21-410, [2013] WLR(D) 231, 2013 SCCR 401, WLRD, Bailii Summary, UKSC 2012/0149, SC Summary, SC)
    The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .

Crompton v The United Kingdom; 13 May 2008

References: [1999] ECHR 183, 42509/05
Links: Bailii
(date) Statement of Facts
Statutes: European Convention on Human Rights
This case is cited by:

  • Statement of Facts – Crompton -v- The United Kingdom ECHR (42509/05, Bailii, [2009] ECHR 1659, (2010) 50 EHRR 36)
    The applicant had joined the Territorial Army as a pay and accounts clerk but was made redundant. He claimed redress in respect of his redundancy from his Commanding Officer. There then followed a prolonged series of proceedings which took eleven . .
  • Statement of Facts – Crompton -v- The United Kingdom ECHR (Bailii, [2011] ECHR 1656, 42509/05)
    Supervision of execution of final judgments. . .

Tse Wai Chun Paul v Albert Cheng; 13 Nov 2000

References: [2001] EMLR 777, [2000] 3 HKLRD 418, [2000] HKCFA 35
Links: hklii
Coram: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Ribeiro PJ, Sir Denys Roberts NPJ and Lord Nicholls of Birkenhead NPJ
(Court of Final Appeal of Hong Kong) For the purposes of the defence to defamation of fair comment: ‘The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded’ and
‘The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting upon matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree’.
The defence of honest comment is available even if the comment was made with intent to injure, as where a politician seeks to damage his political opponent.
The comment must be on a matter of public interest, recognisable as comment, be based on true or privileged facts, indicate the facts on which the comment is based, and ‘must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.’
This case cites:

  • Cited – Myerson -v- Smith’s Weekly ((1923) 24 SR (NSW) 20)
    (New South Wales) The court considered the distinction between fact and comment. Ferguson J said: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his . .
  • Cited – Gardiner -v- Fairfax ((1942) 42 SR (NSW) 171)
    Complaint was made that the plaintiff had been libelled in the defendant’s book review.
    Held: A publication is defamatory in nature if it ‘is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the . .
  • Cited – London Artists Ltd -v- Littler CA ([1969] 2 QB 375, [1968] 1 WLR 607, Bailii, [1968] EWCA Civ 3, [1969] 2 All ER 193)
    The defence of fair comment on matters of public interest is not to be defined too closely. Lord Denning MR said: ‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going . .
  • Cited – Kemsley -v- Foot HL ([1952] AC 345)
    The plaintiff alleged that the headline to an article written by the defendant which criticised the behaviour of the Beaverbrook Press, and which read ‘Lower than Hemsley’ was defamatory. The defendant pleaded fair comment.
    Held: The article . .

This case is cited by:

  • Cited – Keays -v- Guardian Newspapers Limited, Alton, Sarler QBD (Bailii, [2003] EWHC 1565 (QB))
    The claimant asserted defamation by the defendant. The parties sought a decision on whether the article at issue was a comment piece, in which case the defendant could plead fair comment, or one asserting fact, in which case that defence would not . .
  • Cited – Panday -v- Gordon PC (Bailii, [2005] UKPC 36, PC)
    (Trinidad and Tobago) A senior politician had accused an opponent of pseudo-racism. The defendant asserted that he had a defence under the constitution, allowing freedom of political speech.
    Held: The appeal failed. The statements were . .
  • Cited – Lowe -v- Associated Newspapers Ltd QBD ([2006] 3 All ER 357, Bailii, [2006] EWHC 320 (QB), Times 29-Mar-06, [2007] QB 580)
    The defendant sought to defend the claim for defamation by claiming fair comment. The claimant said that the relevant facts were not known to the defendant at the time of the publication.
    Held: To claim facts in aid of a defence of fair . .
  • Cited – Associated Newspapers Ltd -v- Burstein CA (Bailii, [2007] EWCA Civ 600, [2007] EMLR 21, [2007] EMLR 571, [2007] 4 All ER 319, [2001] 1 WLR 579)
    The newspaper appealed an award of damages for defamation after its theatre critic’s review of an opera written by the claimant. The author said the article made him appear to sympathise with terrorism.
    Held: The appeal succeeded. Keene LJ . .
  • Cited – Blackwell -v- News Group Newspapers Ltd and others QBD (Bailii, [2007] EWHC 3098 (QB))
    The claimant sought damages saying that a newspaper article published by the defendant was defamatory. He was the manager of Leeds United Football club, and was said to have lost the dressing room.
    Held: The claimant was entitled to summary . .
  • Cited – CC -v- AB QBD (Bailii, [2006] EWHC 3083 (QB), [2007] EMLR 11, [2007] Fam Law 591, [2007] 2 FLR 301)
    The claimant sought an order to prevent the defendant and others from making it known that the claimant had had an adulterous relationship with the defendant’s wife. . .
  • Cited – Thornton -v- Telegraph Media Group Ltd QBD (Bailii, [2009] EWHC 2863 (QB))
    The claimant sought damages for an article in the defendant’s newspaper, a review of her book which said she had falsely claimed to have interviewed artists including the review author and that the claimant allowed interviewees control over what was . .
  • Limited – Spiller and Another -v- Joseph and Others SC (Bailii, [2010] UKSC 53, UKSC 2009/0210, SC Summary, SC, [2010] WLR (D) 310, WLRD, [2010] 3 WLR 1791, Bailii Summary, [2011] 1 All ER 947, [2011] ICR 1, [2011] EMLR 11)
    The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
    Held: The defendants’ appeal succeeded, and the fair . .

Regina v Edwards Books and Art Ltd; 18 Dec 1986

References: [1986] 2 SCR 713, (1986) 35 DLR (4th) 1, 30 CCC (3d) 385, 86 CLLC 14, 55 CR (3d) 193
Links: Canlii
Coram: Dickson CJ
Supreme Court of Canada – the limitation of the protected right must be one that ‘it was reasonable for the legislature to impose’, and that the courts were ‘not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line’.
‘a business corporation cannot possess religious beliefs’. And
‘In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons’
legislative drafting is a difficult art and Parliament cannot be held to a standard of perfection.
Statutes: Canadian Charter of Rights and Freedoms to life, liberty and security
This case is cited by:

  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

Syndicat Northcrest v Amselem; 30 Jun 2004

References: (2004) 241 DLR (4th) 1, [2004] 2 SCR 551
Links: Canlii
Coram: McLachlin CJ and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ
Canlii (Supreme Court of Canada) Civil rights – Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs on balconies of their co-owned property — Syndicate of co-owners requesting removal of succahs because declaration of co-ownership prohibits decorations, alterations and constructions on balconies — Whether freedom of religion infringed by declaration of co-ownership — If so, whether refusal to permit setting up of succahs justified by reliance on right to enjoy property and right to personal security — Whether Orthodox Jewish residents waived their right to freedom of religion by signing declaration of co-ownership — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 1, 3, 6. Constitutional law — Charter of Rights — Freedom of religion — Definition of freedom of religion — Proper approach for freedom of religion analyses — Canadian Charter of Rights and Freedoms, s. 2(a).
The court is concerned to ensure that an assertion of religious belief before it is made in good faith: ‘neither fictitious, nor capricious, and that it is not an artifice’
This case is cited by:

  • Cited – Regina -v- Secretary of State for Education and Employment and others ex parte Williamson and others HL (House of Lords, [2005] UKHL 15, Bailii, Times 25-Feb-05, [2005] 2 WLR 590, [2005] 2 AC 246, [2005] 2 All ER 1, [2005] ELR 291, [2005] 2 FLR 374, [2005] 1 FCR 498)
    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. . .
  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Marper -v United Kingdom; S v United Kingdom: ECHR 16 Jan 2007

References: [2007] EHCR 110, 30562/04
Links: Bailii
Coram: J. Casadevall, P
Decision as to admissibility – the applicants complained of the retention by police of DNA and fingerprint samples and records.
Held: Admissible.
This case cites:

This case is cited by:

  • See Also – Marper -v United Kingdom; S -v- United Kingdom ECHR (Bailii, [2008] ECHR 178, 30562/04)
    Grand Chamber – Press Release – The applicant complained of the retention by the police of DNA and fingerprint records – The applicants both complain about the retention of their fingerprints and DNA samples and the fact that they are being used in . .
  • See Also – Marper -v- United Kingdom; S -v- United Kingdom ECHR (30562/04, Bailii, [2008] ECHR 1581, Times, (2008) 158 NLJ 1755, (2009) 48 EHRR 50, 25 BHRC 557, [2009] Crim LR 355)
    (Grand Chamber hearing) The applicants complained that on being arrested on suspicion, samples of their DNA had been taken, but despite being released without charge, the samples had retained on the Police database.
    Held: (Unanimous) The . .

Last Update: 30-Sep-15 Ref: 278517

P v The General Council of the Bar; Re P (A Barrister); 24 Jan 2005

References: [2005] 1 WLR 3019
Coram: Colman J, Clark, Nathan
(Visitors to the Inns of Court) A Disciplinary Tribunal was convened by the President of COIC pursuant to the 2000 Regulations. It found the barrister guilty of misconduct and suspended her from practice for three months. The Visitors appointed to hear the barrister’s appeal included N, who was also a member of the Bar’s Professional Conduct and Complaints Committee. That Committee was responsible for prosecuting allegations of misconduct, although N had not been involved in prosecuting the current case. The appellant barrister objected to N’s participation: ‘Ms N would be a judge in her own cause. This would also be a situation of apparent bias for, although it was accepted that she had taken no part in the particular decision of the PCCC to prosecute the Appellant and that there was no actual bias on her part, there was nevertheless a real apprehension or danger or possibility or suspicion of bias by reason of her membership of the PCCC.’
Held: The objection succeeded. N was obliged to recuse herself both on common law principles and in order to secure compliance with ECHR article 6. The decision was rendered under the doctrine that no one must be a judge in his own cause, rendering it unnecessary to consider whether the doctrine of apparent bias was also an impediment to Ms Nathan’s participation. However, the judgment expressed the firm view that the doctrine of apparent bias did also require Ms Nathan’s recusal.
‘The decision by the PCCC to institute proceedings against a barrister thus imposes upon the PCCC as agent for the Bar Council a duty to prosecute that person and, consistently with the applicable procedure, to present the case against the barrister in a manner designed to procure conviction. Whereas it is undoubtedly true that the proceedings in which the charges are prosecuted must be fairly and justly conducted, those representing the Bar Council have a duty as its agents to procure conviction or in the case of appeals before Visitors to defeat an appeal. They do not have the function of a neutral amicus. Their interest is conviction or dismissal of appeals . .
In considering whether a lay representative on a Visitors Panel shares the interest of the PCCC, of which that person is a member, in the appeal being dismissed, an analysis of the quality of that particular member’s ability to maintain objectivity is nothing to the point. Nobody called in question Lord Hoffmann’s personal ability to be objective and impartial. Nor, in our judgment, does the fact that the purpose of including lay representatives on the PCCC and as members of the Visitors panel, have the effect of insulating such persons from having the appearance of sharing the interest of the PCCC as a prosecutor. Lord Hoffmann’s judicial oath could provide no such insulation. Nor do we find that a lay representative’s non-participation in meetings relating to the prosecution in question, cuts off that person from the responsibility which, as a member of the PCCC, that lay representative bears together with its other members for taking forward and facilitating the prosecution. Lord Hoffmann was not a decision-taker at either Amnesty International or AICL with regard to participation in the proceedings . .
Accordingly, the perception of impartiality is to be based on that which is open to view and not on facts which would be hidden from an outside fair-minded observer.
If therefore one assumes that the scope of the hypothetical fair-minded observer’s knowledge is confined to the Code of Conduct of the Bar, the Disciplinary Tribunal Regulations, the Complaints Rules and the Hearings before the Visitors Rules and does not extend to the methods of selection of the members of the PCCC or, except in so far as they should not have attended the relevant meeting of the PCCC, the Visitors panels or to the attendance records of lay representatives at meetings of the PCCC, we consider that even taking account of the high calibre of lay representatives generally and of their function in representing the public interest, there would be a perception to the fair-minded observer of a real possibility of subconscious lack of impartiality by reason of exposure to influence by such prosecuting policies as might exist amongst PCCC members generally.’
Statutes: European Convention on Human Rights 6
This case cites:

  • Cited – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .

This case is cited by:

Marper -v United Kingdom; S v United Kingdom: ECHR 27 Feb 2008

References: [2008] ECHR 178, 30562/04
Links: Bailii
Grand Chamber – Press Release – The applicant complained of the retention by the police of DNA and fingerprint records – The applicants both complain about the retention of their fingerprints and DNA samples and the fact that they are being used in ongoing criminal investigations. They are also concerned about the possible future uses of those samples and, in general, that their retention casts suspicion on people who have been acquitted or discharged of crimes. They further contend that, as people without convictions who are no longer suspected criminals, they should be treated in the same way as the rest of the unconvicted population of the United Kingdom. They rely on Articles 8 (right to respect for private life) and 14 (prohibition of discrimination) of the European Convention on Human Rights.
The application was lodged with the European Court of Human Rights on 16 August 2004 and declared admissible on 16 January 2007. The Chamber to which the case was assigned decided to relinquish jurisdiction to the Grand Chamber on 10 July 2007.
This case cites:

This case is cited by:

  • See Also – Marper -v- United Kingdom; S -v- United Kingdom ECHR (30562/04, Bailii, [2008] ECHR 1581, Times, (2008) 158 NLJ 1755, (2009) 48 EHRR 50, 25 BHRC 557, [2009] Crim LR 355)
    (Grand Chamber hearing) The applicants complained that on being arrested on suspicion, samples of their DNA had been taken, but despite being released without charge, the samples had retained on the Police database.
    Held: (Unanimous) The . .

Last Update: 30-Sep-15 Ref: 278518

Regina v Secretary of State for the Home Department ex parte Razgar etc: HL 17 Jun 2004

References: [2004] UKHL 27, [2004] 3 WLR 58, Times 21-Jun-04, [2004] 2 AC 369, [2004] 3 All ER 821, [2004] INLR 349
Links: House of Lords, Bailii
Coram: Lord Bingham of Cornhill, Lord Steyn, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was manifestly unfounded.
Held: Mental health was part of the respect for private life protected by article 8. Where it was forseeable that a claimant’s health would be damaged by a removal, then article 8 could be engaged. Henao’s case had not been argued under article 8. Decisions made within the procedures would only rarely be non-compliant with Human Rights law, and exceptions could only be identified individually. Here, the Home Secretary’s could not properly certify that the claim was manifestly unfounded.
Statutes: European Convention on Human Rights 8, Immigration and Asylum Act 1999 72(2)(a)
This case cites:

This case is cited by:

  • Cited – Regina -v- Special Adjudicator ex parte Ullah; Regina -v- Secretary of State for the Home Department HL (House of Lords, [2004] UKHL 26, Bailii, Times 18-Jun-04, [2004] 3 WLR 23, [2004] 2 AC 323, [2004] INLR 381, [2004] UKHRR 995, [2004] 3 All ER 785)
    The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
  • Cited – Michael Atkinson -v- Secretary of State for the Home Department CA (Bailii, [2004] EWCA Civ 846, Times 20-Jul-04)
    The applicant sought judicial review of the respondent’s certification under s94 that his cliam for asylum was hopeless. He said that he had acted as an informer against criminal gangs in Jamaica, and that the state of Jamacia could not provide him . .
  • Cited – Government of the United States of America -v- Barnette and Montgomery (No 2) HL (House of Lords, Bailii, [2004] UKHL 37, [2004] 4 All ER 289, [2004] 1 WLR 2241)
    The applicant sought to resist orders for the return to the US of what were alleged to be the proceeds (direct or indirect) of a fraud committed there. She had been in contempt of the court in the US and was a fugitive here. She complained that the . .
  • Cited – Regina (G) -v- Secretary of State for the Home Department CA (Times 05-May-05)
    The claimant had first sought asylum saying she was born in 1984. On being refused, she said she was born in 1988 and was only 15 years old, and that her removal and return to Somalia would breach the regulation, and interfere with her right to . .
  • Cited – Countryside Alliance and others -v- HM Attorney General and others Admn (Bailii, [2005] EWHC 1677 (Admin), Times 03-Aug-05, [2006] EuLR 178)
    The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
  • Cited – Bermingham & others -v- The Director of the Serious Fraud Office QBD (Bailii, [2006] EWHC 200 (Admin), Times 24-Feb-06, [2006] 3 All ER 239, [2007] QB 727, [2006] UKHRR 450, [2006] ACD 55, [2007] 2 WLR 635)
    The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
    Held: The Director . .
  • Cited – Regina -v- Liliane Makuwa CACD (Bailii, [2006] EWCA Crim 175, Times 28-Apr-06)
    The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
    Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
  • Cited – Huang -v- Secretary of State for the Home Department HL (Bailii, [2007] UKHL 11, [2007] 2 AC 167, [2007] 2 WLR 581, [2007] 4 All ER 15, (2007) 24 BHRC 74, [2007] INLR 314, [2007] UKHRR 759, [2007] 1 FLR 2021, [2007] Imm AR 571, [2007] Fam Law 587, [2007] HRLR 22)
    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 – EB (Kosovo) -v- Secretary of State for the Home Department HL (Bailii, [2008] UKHL 41, [2008] 3 WLR, Times 30-Jun-08, HL, [2009] 1 AC 1159, [2008] UKHRR 1087, (2008) 25 BHRC 228, [2008] Imm AR 713, [2008] INLR 516, [2008] HRLR 40, [2008] 4 All ER 28)
    The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
    Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
  • Cited – G, Regina (on the Application of) -v- Nottinghamshire Healthcare NHS Trust Admn (Bailii, [2008] EWHC 1096 (Admin), Times 28-May-08)
    The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
    Held: The claim failed. The legislative objectives were sufficiently serious to . .
  • Cited – Rainford, Regina (on the Application of) -v- Secretary of State for the Home Department Admn (Bailii, [2008] EWHC 2474 (Admin))
    The claimant had been in England since he was 11, and was now 38. He had been repeatedly convicted. He had challenged a deportation notice on a human rights basis. He now challenged a certificate that this claim was manifestly ill founded.
  • Cited – EM (Lebanon) -v- Secretary of State for the Home Department HL (Bailii, [2008] UKHL 64, Times, [2008] 3 WLR 931, HL, [2009] HRLR 6, [2009] AC 1198, [2009] 1 FCR 441, [2009] 1 All ER 559, [2009] UKHRR 22, [2008] Fam Law 1190, [2008] 2 FLR 2067)
    The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
    Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
  • Cited – Purdy, Regina (on the Application of) -v- Director of Public Prosecutions and Another QBD (Bailii, [2008] EWHC 2565 (QB), Times)
    The applicant suffered mutiple sclerosis and considered that she might wish to go abroad to end her life. She asked the court to make more clear the guidance provided by the Director as to whether her partner might be prosecuted under section 2(1) . .
  • Cited – RG (Suicide, Risk, Razgar Considered) Sri Lanka IAT (Bailii, [2005] UKIAT 00072)
    . .
  • Cited – Purdy, Regina (on the Application of) -v- Director of Public Prosecutions and Another Admn (Bailii, [2008] EWHC 2565 (Admin), (2008) 104 BMLR 231, [2009] HRLR 7, [2009] UKHRR 94)
    The applicant said that the defendant had unlawfully failed to provide detailed guidance under section 10 of the 1985 Act, on the circumstances under which a prosecution might lie of a person performing acts which might assist another to commit . .
  • Cited – ZT (Kosovo) -v- Secretary of State for the Home Department HL (Bailii, [2009] UKHL 6, HL, Times, [2009] 1 WLR 348, [2009] INLR 310, [2009] 3 All ER 976)
    The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . .
  • Cited – Purdy, Regina (on the Application of) -v- Director of Public Prosecutions and others CA (Bailii, [2009] EWCA Civ 92, Times, [2009] 1 Cr App R 32, (2009) 159 NLJ 309, [2009] WLR (D) 62, WLRD, (2009) 106 BMLR 170, [2009] UKHRR 1005)
    The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
  • Cited – N, Regina (on the Application of) -v- Secretary of State for Health; Regina (E) v Nottinghamshire Healthcare NHS Trust CA (Bailii 24-Jul-09, [2009] EWCA Civ 795, Times, [2009] HRLR 31)
    The claimants appealed against the imposition on them of smoking bans while they were compulsorily detained at Rampton Hospital. They said that other persons detained for example in prisons had been exempted fully.
    Held: The right or freedom . .
  • Cited – Norris -v- Government of United States of America SC (Bailii, [2010] UKSC 9, Times, UKSC 2009/0052, SC, SCSumm, [2010] 2 All ER 267, [2010] 2 WLR 572, [2010] Lloyd’s Rep FC 325, Bailii Summary, [2010] 2 AC 487)
    The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
  • Cited – Quila and Another, Regina (on The Application of) -v- Secretary of State for The Home Department SC (SC, SC Summ, UKSC 2011/0022, Bailii Summary, Bailii, [2011] UKSC 45, [2012] 1 All ER 1011, [2011] 3 WLR 836, [2012] Imm AR 135, [2012] 1 FLR 788, [2011] UKHRR 1347, [2012] Fam Law 21, [2011] 3 FCR 575, [2011] INLR 698, [2012] 1 AC 621, [2012] HRLR 2)
    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 – HH -v- Deputy Prosecutor of The Italian Republic, Genoa SC (Bailii, [2012] UKSC 25, [2012] 3 WLR 90, Bailii Summary, SC Summary, SC, UKSC 2011/0128, [2013] 1 AC 338, [2012] HRLR 25, [2012] 4 All ER 539)
    In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
  • Cited – Zoumbas -v- Secretary of State for The Home Department SC (Bailii, [2013] UKSC 74, [2013] 1 WLR 3690, [2014] 1 All ER 638, [2013] WLR(D) 458, [2014] Imm AR 479, [2014] INLR 262, [2014] 1 FCR 141, 2014 SC (UKSC) 75, WLRD, Bailii Summary, UKSC 2013/0100, SC Summary, SC)
    The appellant challenged a decision that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He argued that the return to the . .