Weddle, Regina (on The Application of) v Secretary of State for Justice: Admn 30 Jul 2013

The life prisoner claimant sought judicial review of the continuing failure of the Secretary of State for Justice to provide him with the means to demonstrate reduced risk so that he can progress to a lower security category while in prison.

Cranston J
[2013] EWHC 2323 (Admin)
Bailii
England and Wales

Prisons

Updated: 28 November 2021; Ref: scu.519977

Yepishin v Russia: ECHR 27 Jun 2013

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

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 15 November 2021; Ref: scu.512105

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

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

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

Cited by:
SummaryRadu v Germany ECHR 16-May-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Health

Updated: 15 November 2021; Ref: scu.512073

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

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

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

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 12 November 2021; Ref: scu.510729

Noone, Regina (on The Application of) v Governor of HMP Drake Hall and Another: SC 30 Jun 2010

The prisoner had been sentenced to consecutive terms of imprisonment, one for less, and one for more than 12 months. She disputed the date on which she should be released to home detention under curfew under the Guidance issued by the Secretary of State explaining how the release date should be calculated where longest sentence as subject to the 2003 Act, and the shorter sentences subject to the 1991 Act. The CA had ruled the policy lawful.
Held: The appeal succeeded and the policy was declared unlawful. The 2003 Act brought in provisions which had not been implemented, and the Transitional Order applied. However the 2005 Order allowed the possibility of capricious results, and the result was not that intended by Parliament. Paragraph 14 of the 2005 Order was intended to apply only where all the sentences were less than twelve months, but this left a gap for the situation where one or more was not. It was intended that sections 262(3) and 264(2) and (3) should apply. The guidance incorrectly inferred that an order that two sentences are to be consecutive directs that the second should start when the custodial part of the first ends has no basis in law and converts a sentence that is directed to be consecutive into a sentence which is in part concurrent.

Lord Phillips, President, Lord Saville, Lord Brown, Lord Mance, Lord Judge
[2010] UKSC 30, [2010] WLR (D) 164, [2010] 1 WLR 1743, [2010] 4 All ER 463, [2010] 1 WLR 1743
Bailii, Bailii Summary, SC, SC Summary
Criminal Justice Act 1991, Criminal Justice Act 2003 181 244, Crime and Disorder Act 1998 101, Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005 14
England and Wales
Citing:
At First InstanceNoone, Regina (on the Application of) v HMP Drake Hall and Another Admn 31-Jan-2008
The court considered the complications created when the schemes for providing early release of short term prisoners had not been implemented, but the new Act impacted in the previous arrangements anyway as regards those sentenced to consecutive . .
Appeal fromNoone, Regina (on the Application of) v HMP Drake Hall and Another CA 17-Oct-2008
The prisoner disputed the calculation of the date when she would become entitled to consideration for early release under a Home Detention Curfew. The Secretary of State appealed against a decision that his policy guidance was unlawful.
Held: . .
CitedHighton, Regina (on the Application of) v Her Majesty’s Youth Offender Institute Lancaster Farms and Another Admn 17-Apr-2007
Challenge to calculation of servable sentence term. . .
CitedRound and Dunn v Regina CACD 16-Dec-2009
Non-consolidation of sentence to debar home curfew
Each defendant had been sentenced to consecutive terms of imprisonment under the 1991 and 2003 Acts. One was above and one below twelve months. They complained that the result of trying to reconcile the statutory provisions was that they had . .
CitedInco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .
CitedAttorney General’s Reference (No 5 of 2002) HL 14-Oct-2004
The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, . .
CitedStellato, Regina (on the Application of)v Secretary of State for the Home Department HL 28-Feb-2007
The prisoner had served part of his ten year sentence, been released on licence and then recalled. He complained that the new parole system under which he had then to apply was invalid, having been made Parliament by negative resolution.
Held: . .
CitedBuddington v Secretary of State for the Home Department CA 27-Mar-2006
The court considered the validity of of the claimant’s recall to prison. The words ‘falls to be released’ in paragraph 23 mean ‘is entitled to be released’ or ‘is released’. The author of the Order may have been suffering from ‘Homeric exhaustion’. . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Prisons

Leading Case

Updated: 11 November 2021; Ref: scu.420018

Yepishin v Russia (Legal Summary): ECHR 27 Jun 2013

Article 34
Hinder the exercise of the right of petition
Prison administration’s refusal to pay postage for dispatch of prisoner’s letters to the European Court: no violation
Facts – The applicant, who was serving a prison sentence in a correctional colony, complained that the colony authorities had refused to assist him with postage costs he could not afford for correspondence with the European Court. According to the Government, the authorities had twice paid for letters to be sent to the Court, but the supervising prosecutor had then informed the applicant’s representative that no federal budget funds had been allocated to provide free stationery to inmates. The applicant subsequently received money, stamps and envelopes from an NGO.
Law – Article 34: Not providing a prisoner with the resources required to correspond with the Court could contribute to a finding of a breach of the State’s obligations under Article 34 of the Convention. However, the Court did not consider the facts complained of by the applicant sufficient to disclose any prejudice in the presentation of his application. Although the authorities had on a number of occasions refused to pay the postage, it did not appear to have been excessively burdensome for him to bear the expenses himself. The applicant had been found fit for work and could have accepted employment that had been offered by the correctional colony. The fact that the applicant’s representative had sent him stamps and envelopes and cash to pay for the postage did not raise an issue under Article 34. Accordingly, the Government had not failed to comply with their obligation under that provision.
Conclusion: no violation (unanimously).
The Court found a violation of Article 3 on account of the conditions of the applicant’s detention and a violation of Article 13 on account of the lack of an effective remedy to complain about the conditions of detention. It awarded the applicant EUR 19,000 in respect of non-pecuniary damage.

591/07 – Legal Summary, [2013] ECHR 728
Bailii
European Convention on Human Rights 34
Human Rights
Cited by:
See AlsoYepishin v Russia ECHR 27-Jun-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 11 November 2021; Ref: scu.513588

Roberts, Regina (on the Application of) v Secretary of State for Home Department: Admn 12 Mar 2004

The claimant complained at a decision not to reduce his Category A status to that of a category B prisoner. He continued to maintain his innocence of the murders for which he had been convicted. He was therefore ineligible to take part in rehabilitation programmes.
Held: After Pate, the respondent had altered the policy to require a governor also to consider whether a prisoner might be prevented from escaping though re-classified as category B. The claimant said that in practice nothing had changed. What was required of a prisoner who maintained his innocence in order to achieve some reduction in his status was that he demonstrate some substantial reason why the risk of his escaping was reduced.

Elias J
[2004] EWHC 679 (Admin)
Bailii
England and Wales
Citing:
CitedWilliam Pate v Secretary of State for the Home Department Admn 2002
The court considered the prisoner’s complaint that the respondent’s policies on the re-classification of prisoners were unlawful in that they disallowed the prison governor from classifying him as Category B despite the fact that as a frail and . .
CitedRegina v Secretary of State Home Department, Ex Parte Duggan QBD 9-Dec-1993
A High Security prisoner is to know the gist of report and reasons for his categorisation: ‘on the first and subsequent annual reviews, fairness, in my view, requires that the gist of the reports be revealed in order to give the opportunity for . .
CitedRegina v Secretary of State for Home Department ex parte McAvoy CA 3-Dec-1997
A prisoner had the right to know the gist (though not the full contents) of reports used in deciding on a review of his security status. (Lord Woolf MR) ‘For my part, I accept that it is desirable, when something has the impact which being placed in . .
CitedLord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
CitedRegina v Secretary of State for Home Department ex parte Hepworth, Fenton-Palmer and Baldonzy and Regina v Parole Board ex parte Winfield Admn 25-Mar-1997
The applicants for judicial review had each been convicted and sentenced for sex offences. Each maintained his innocence, and now complained that that fact had prejudiced decisions as to early release on parole and as to their categorisation.
CitedRegina v Parole Board and others ex parte Oyston CA 1-Mar-2000
Lord Bingham set out the difficulties faced by the Parole Board when dealing with prisoners who maintained their denials of guilt: ‘Convicted prisoners who persistently deny commission of the offence or offences of which they have been convicted . .
CitedWilliams v The Secretary of State for the Home Office CA 17-Apr-2002
The applicant was a post-tariff discretionary life prisoner, applying for a change in his security classification. He sought disclosure of his security report which was denied by the respondent. He alleged a breach of his human rights.
Held: . .

Cited by:
AppliedOsborne, Regina (on The Application of) v HM Prison Littlehey Admn 26-May-2010
The claimant challenged the decision not to be reclassified to Category D. He was a convicted sex offender, but maintained his innocence. The defendant said this did not demonstrate a reduction in risk, since he was not eligible to participate in . .

Lists of cited by and citing cases may be incomplete.

Prisons

Leading Case

Updated: 10 November 2021; Ref: scu.195560

O’Reilly v Mackman: HL 1982

Remission of Sentence is a Privilege not a Right

The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time limits.
Held: The forfeiture of remission for a prisoner was, as a matter of law, not a loss of liberty but a loss of a privilege, the loss of right protected by public law. Any proceedings to enforce a public duty should not be by way of ordinary action.
Lord Diplock said: ‘it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities . . I have described this as a general rule; for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons.’ The purpose of the requirement was to protect the public administration against false, frivolous or tardy challenges to official action: ‘The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision’. An advantage of O.53 was that the court had an opportunity to exercise its discretion at the outset of the proceedings rather than would have happened at that time in proceedings begun by originating summons at the end of the proceedings. This was an important protection in the interests of good administration and for third parties who may be indirectly affected by the proceedings: ‘Unless such an action can be struck out summarily at the outset as an abuse of the process of the court the whole purpose of the public policy to which the change in O.53 was directed would be defeated.’ Though a respondent should not normally be cross examined as to its affidavit, nevertheless, ‘ . . leave to cross-examination should be granted where the interests of justice so require.’ The grant of leave to cross-examine deponents is goverened by the same principles in applications for judicial review as in actions commenced by originating summonses.

Lord Diplock, Lord Fraser of Tullybelton, Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brightman
[1983] 2 AC 237, [1982] 3 WLR 1096, [1982] 3 All ER 1124, [1983] UKHL 1
Bailii
RSC O53
England and Wales
Citing:
ApprovedRegina v Board of Visitors of Hull Prison, Ex parte St Germain (No 2) CA 1979
Proper Limits on Imprisonment
The court discussed the proper limits of imprisonment: ‘despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration . . An essential characteristic of . .

Cited by:
AppliedGillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
CitedKemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
AppliedRegina v City of Westminster ex parte Mbayi Admn 15-Jul-1997
The applicant sought review of the decision of the respondent that she had refused accommodation. She wanted to assert that they had failed to take account of her medical needs.
Held: The application had not proceeded at a proper case, but the . .
CitedSD, Re Application for Judicial Review OHCS 2-Oct-2003
Parents sought judicial review of a decision not to open a Record of Needs for their child. A report said that the child was dyslexic. The applicants said his condition had not improved after an earlier request to open a record had been refused.
CitedBoddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
AppliedCocks v Thanet District Council HL 25-Nov-1981
The applicant had been given temporary accomodation under the Act. He sought to enforce the obligation on the respondent to house him permanently by an action in the county court. The authority said the action should have been by judicial review. . .
CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
CitedClark v University of Lincolnshire and Humberside CA 14-Apr-2000
A student had been failed after being falsely accused of cheating, but the academic review board, on remarking the paper marked it as zero.
Held: Where a University did not have the supervisory jurisdiction of a visitor, a breach of contract . .
CitedRoy v Kensington and Chelsea and Westminster Family Practitioner Committee HL 6-Feb-1992
The respondent had withheld part of the plaintiff’s GP payments saying that he had failed to devote himself full time to his practice. The plaintiff sued, and the defendant sought to strike out his application, saying that his application had to be . .
CitedMercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .
CitedSteed v Secretary of State for the Home Department HL 26-May-2000
The claimant surrendered guns and ammunition under the 1997 Act, and was due to be compensated. His claim was not settled, and he commenced an action in the County Court for the sums claimed. The defendant denied any duty to pay up within a . .
MentionedQRS 1 APS and others v Frandsen CA 21-May-1999
The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought . .
CitedStancliffe Stone Company Ltd v Peak District National Park Authority QBD 22-Jun-2004
The claimants sought a declaration. Planning permission had been confirmed for four mineral extraction sites by letter in 1952. In 1996, two were listed as now being dormant. The claimant said the letter of 1952 created on single planning permision . .
CitedDavidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
CitedTweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
AppliedKing v East Ayrshire Council IHCS 3-Nov-1997
An application for the closure of a school need not be based upon an assessment of school’s pupil capacity as at time of assessment. The court may exercise its discretion to refuse judicial review where that is appropriate, having regard to the . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedSher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
CitedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
CitedBubb 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 . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review, Prisons

Leading Case

Updated: 10 November 2021; Ref: scu.182909

Hirst v United Kingdom (2): ECHR 6 Oct 2005

(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a democratic society. Though the right is not absolute, any limitation had to be in pursuance of a legitimate aim. There is ‘no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.’
‘Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation’.
‘prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of article 5 of the Convention.’

L Wildhaber, P
Times 10-Oct-2005, 74025/01, (2006) 42 EHRR 41, [2005] ECHR 681
Worldlii, Bailii
European Convention on Human Rights 3, Representation of the People Act 1983 3
Human Rights
Citing:
At CommissionHirst v The United Kingdom (No. 2) ECHR 30-Mar-2004
(Commission) The prisoner alleged that the denial of his right to vote whilst in prison was disproportionate. He was serving a life sentence for manslaughter.
Held: The denial of a right to vote was in infringement of his rights and . .
CitedMathieu Mohin and Clerfayt v Belgium ECHR 2-Mar-1987
(Plenary Court) The court described and approved the way in which an ‘institutional’ right to vote had developed into ‘subjective rights of participation – the ‘right to vote’ and the ‘right to stand for election’.’ It described the ambit of Article . .
MentionedMelnychenko v Ukraine ECHR 19-Oct-2004
. .
CitedAziz v Cyprus ECHR 22-Jun-2004
Depriving a Turkish Cypriot living in the Government-controlled area of Cyprus of the right to vote was a breach of article 3. However: ‘States enjoy considerable latitude to establish rules within their constitutional order governing . . the . .
CitedPodkolzina v Latvia ECHR 9-Apr-2002
. .
Appeal fromRegina (Pearson Martinez and Hirst) v Secretary of State for the Home Department and Others; Hirst v Attorney-General QBD 17-Apr-2001
A law which removed a prisoner’s right to vote whilst in prison was not incompatible with his human rights. The implied right to vote under article 3 was not absolute, and states had a wide margin of appreciation as to how and to what extent the . .
CitedLabita v Italy ECHR 6-Apr-2000
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 3 with regard to alleged ill-treatment; Violation of Art. 3 with regard to lack of effective investigation; No violation of Art. 3 with regard to . .
CitedThe United Communist Party of Turkey And Others v Turkey ECHR 30-Jan-1998
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 11; Not necessary to examine Art. 9; Not necessary to examine Art. 10; Not necessary to examine Art. 14; Not necessary to examine Art. 18; Not . .
CitedMatthews v The United Kingdom ECHR 18-Feb-1999
Member states have obligations to ensure that citizens of each state were given opportunity to vote in European elections. Britain failed to give the vote to its citizens in Gibraltar in breach of the convention right to participate in free . .
CitedKalashnikov v Russia ECHR 15-Jul-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; Violation of Art. 5-3; Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses . .
CitedVan Der Ven v The Netherlands ECHR 4-Feb-2003
The applicant’s complaint was that the detention regime to which he was subjected in a maximum security prison, including the use of intrusive strip searches, constituted inhuman and/or degrading treatment and infringed his right to respect for his . .
CitedPloski v Poland ECHR 12-Nov-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings
The claimant had been in prison on . .
CitedYankov v Bulgaria ECHR 11-Dec-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3 ; Violation of Art. 10 ; Violation of Art. 13 ; Violation of Art. 5-3 ; Violation of Art. 5-4 ; Violation of Art. 5-5 ; Violation of Art. 6-1 ; . .
CitedPoltoratskiy v Ukraine ECHR 29-Apr-2003
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 3 with regard to alleged assaults ; Violation of Art. 3 with regard to lack of effective investigation ; Violation of Art. 3 with regard to . .
CitedGolder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
CitedSilver And Others v The United Kingdom ECHR 25-Mar-1983
There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were . .

Cited by:
CitedWilson v Wychavon District Council and Another Admn 20-Dec-2005
The claimant complained that the law which protected an occupier of a dwelling house from a temporary stop notice did not apply to those living in caravans, and that this was discriminatory.
Held: The claim failed. ‘usually a change of use of . .
CitedSmith v KD Scott, Electoral Registration Officer SCS 24-Jan-2007
The prisoner claimed that his right to vote had not been re-instated despite a year having passed since the European Court of Human Rights had found that the withdrawal of that right for prisoners was an infringement.
Held: It was not possible . .
CitedWilson, Regina (on the Application of) v Wychavon District Council and Another CA 6-Feb-2007
The claimants said that an enforcement notice issued against them under a law which would prevent such a notice against the use of a building as a dwelling, but not against use of a caravan as a dwelling, discriminated against them as gypsies.
CitedAB, Regina (On the Application of) v Secretary of State for Justice and Another Admn 4-Sep-2009
The claimant was serving a sentence of imprisonment. She was a pre-operative transgender woman, but held in a male prison. She sought review of a decision to refuse transfer to a women’s prison. The Gender Recognition Panel was satisfied that the . .
CitedRegina (Chester) v Secretary of State for Justice and Another QBD 28-Oct-2009
The claimant a prisoner detained after the expiry of his lfe sentence tariff as dangerous, sought a declaration that the refusal to allow him to register as a voter in prison infringed his human rights.
Held: Such a claim had already succeeded . .
CitedBary and Others, Regina (on The Application of) v Secretary of State for Justice and Another Admn 19-Mar-2010
The applicants, incarcerated at Long Lartin pending extradition or deportation, challenged a decision further restricting their movements within the prison. All were unconvicted, and all but one were suspected of terrorist crimes. The changes were . .
Grand ChamberHirst v The United Kingdom ECHR 3-Dec-2009
(Resolutions) The court noted the long delay in the respondent in implementing the judgment of the court and giving prisoners voting rights, the present consultation and adjourned until March 2011 for further information. . .
Grand Chamber decisionTovey and Others v Ministry of Justice QBD 18-Feb-2011
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.
CitedChester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
CitedNicklinson 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 . .
CitedT 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 . .
CitedGaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
CitedMcCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Elections

Leading Case

Updated: 09 November 2021; Ref: scu.231041

Tymoshenko v Ukraine (Legal Summary): ECHR 30 Apr 2013

ECHR Article 5-1
Lawful arrest or detention
Pre-trial detention for allegedly contemptuous behaviour to trial court: violation
Article 18
Restrictions for unauthorised purposes
Deprivation of opposition leader’s liberty for reasons other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence: violation
Facts – The applicant was the leader of one of a leading opposition party and a former Prime Minister. In April 2011 criminal proceedings were brought against her for alleged excess of authority and abuse of office and in August 2011 the trial court ordered her detention pending trial. She was later convicted of the offences charged and given a prison sentence.
In her application to the European Court the applicant complained, inter alia, of her conditions of detention, of inadequate medical treatment in detention and of ill-treatment during a transfer to hospital (Article 3 of the Convention), that her detention was arbitrary and that she had had no legal remedy to challenge it or to seek compensation (Article 5) and that she had been detained for political motives (Article 18 in conjunction with Article 5).
Law – Article 3
(a) Conditions of her pre-trial detention – The Court accepted that the applicant may have experienced certain problems on account of the material conditions during part of her detention – in particular limited access to daylight, lack of hot water and lack of heating during limited periods . She had also been unable to take daily walks owing to problems with mobility when a stick or crutch could have facilitated matters. However, while the applicant’s situation may have been uncomfortable, it had not been so harsh as to bring it within the ambit of Article 3.
Conclusion: inadmissible (unanimously).
(b) Alleged lack of appropriate medical treatment during detention – It was clear from the materials before the Court that the applicant’s health had received considerable attention from the Ukrainian authorities, who had invested efforts far beyond the normal health-care arrangements available for ordinary detainees in Ukraine. The applicant, however, had been extremely cautious and because of a lack of confidence in the authorities had regularly refused to allow most of the medical procedures that were suggested to her. While the Court was mindful that patient trust was a key element of the doctor-patient relationship and could be difficult to create in detention, patients nevertheless had a responsibility to communicate and cooperate with health authorities and there was no specific incident noted in the applicant’s medical history while in detention which could have explained such a total lack of confidence on the applicant’s part. The European Committee for the Prevention of Torture (CPT) had visited one of the facilities in which the applicant was detained and had not raised any particular concern over the appropriateness of the medical care provided to her. The applicant had also been transferred to an outside hospital to receive specialist care. In sum, the domestic authorities had afforded the applicant comprehensive, effective and transparent medical assistance.
Conclusion: inadmissible (unanimously).
(c) Alleged ill-treatment during her transfer to hospital – Several bruises had appeared on the applicant’s body during her detention. That alone called for an explanation by the State authorities as to their origin. The location of the bruises – on her stomach and arms – was consistent with her account that she had been violently pulled from her bed and punched in the stomach on the day of her transfer to the hospital. Nevertheless, the Court could not ignore the medical evidence before it that the apparent age of the bruises did not correspond with the time she had indicated and that there had been other possible origins of the bruising which did not involve external trauma. Those findings could only have been satisfactorily confirmed or refuted if she had undergone a full forensic medical examination, which she had refused to allow on two occasions. Given the absence of such forensic evidence as a result of her decision not to undergo the examination, it had not been established to the necessary standard of proof that the bruising had resulted from treatment in breach of Article 3 during her transfer to hospital. Her refusal to undergo a forensic medical examination had also hindered the effectiveness of the investigation into her complaint of ill-treatment, which investigation had therefore been ‘effective’ for the purposes of Article 3.
Conclusion: no violation (four votes to three).
Article 5 – 1: The applicant’s detention pending trial had been ordered for an indefinite period, which in itself was contrary to the requirements of Article 5 and was a recurrent issue resulting from legislative lacunae. Further, no risk of absconding was discernible from the accusations which had been advanced among the reasons for her detention: these were all of a minor nature and had not resulted in her failing to attend the hearings. In fact, the main justification for her detention indicated by the judge had been her alleged hindering of the proceedings and contemptuous behaviour, which was not among the list of reasons that could justify deprivation of liberty under Article 5 – 1. Nor was it clear how the replacement of the applicant’s obligation not to leave town by her detention was a more appropriate preventive measure in the circumstances. Given that the reasons indicated for her pre-trial detention remained the same until her conviction, the entire period of pre-trial detention had been arbitrary and unlawful.
Conclusion: violation (unanimously).
Article 5 – 4: The domestic courts’ various reviews of the lawfulness of the applicant’s detention did not satisfy the requirements of Article 5 – 4 as they were confined to a mere statement that no appeal lay against a ruling on change of a judicially ordered preventive measure with the result that the deficient reasoning initially applied was reiterated. There was no indication that the domestic courts had considered the specific and pertinent arguments that had been advanced by the applicant in her numerous applications for release. Indeed, the Court had already found in other cases that on the whole Ukrainian law did not provide for a procedure to review the lawfulness of continued detention after the completion of a pre-trial investigation that would satisfy the requirements of Article 5 – 4.
Conclusion: violation (unanimously).
Article 5 – 5: Under Ukrainian law the right to compensation arose in particular when the unlawfulness had been established by a judicial decision. However, there was no procedure under Ukrainian law for seeking compensation for a deprivation of liberty that had been found to be in breach of Article 5 by the European Court. This lacuna had already been noted in other cases against Ukraine.
Conclusion: violation (unanimously).
Article 18 in conjunction with Article 5: An applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed or which could reasonably be inferred from the context. A mere suspicion that the authorities had used their powers for some other purpose than those defined in the Convention was not sufficient to prove that Article 18 was breached.
The applicant’s case showed an overall similarity to that of Lutsenko v. Ukraine (no. 6492/11, 3 July 2012, Information Note no. 154). As in that case, soon after a change of power, the applicant, who was the former Prime Minister and the leader of the strongest opposition party, was accused of abuse of power and prosecuted. The Court had already established that, although the applicant’s detention was formally effected for the purposes envisaged by Article 5 – 1 (c) of the Convention, both the factual context and the reasoning advanced by the authorities suggested that the actual purpose of the measure was to punish the applicant for a lack of respect towards the court which it was claimed she had been manifesting by her behaviour during the proceedings. Accordingly, the restriction of the applicant’s liberty was applied not for the purpose of bringing her before a competent legal authority on reasonable suspicion of having committed an offence, but for other reasons.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.

49872/11 – Legal Summary, [2013] ECHR 468
Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoTymoshenko v Ukraine ECHR 31-May-2012
. .
See AlsoTymoshenko v Ukraine ECHR 3-Jul-2012
. .

Cited by:
Legal SummaryTymoshenko v Ukraine ECHR 30-Apr-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 09 November 2021; Ref: scu.510786

Simm’s Application for Judicial Review; O’Brien’s Application for Judicial Review and Main’s Application for Judicial Review: CA 4 Dec 1997

In two cases, long term prisoners who asserted their innocence were in touch with journalists. Challenges were made against conditions imposed on their access that materials obtained during the visits should not be disclosed by the journalists. A third prisoner challenged the inspection of correspondence with his solicitor. The prison governors’ now appealed against rulings in the favor of the prisoners as to th validity of the Prison Service Standing Orders.

Kennedy, Judge, Chadwick LJJ
[1997] EWCA Civ 2913, [1998] 2 All ER 491
Bailii
Prison Rules 1964 33(1)
England and Wales
Citing:
CitedRegina v Secretary of State Home Department, ex parte Leech (No 2) CA 20-May-1993
Prison rules were ultra vires in so far as they provided for reading letters between prisoners and their legal advisers. Every citizen has a right of unimpeded access to the court. A prisoner’s unimpeded access to a solicitor for the purpose of . .
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .

Lists of cited by and citing cases may be incomplete.

Prisons, Media

Leading Case

Updated: 09 November 2021; Ref: scu.143312

Khodorkovskiy and Lebedev v Russia: ECHR 25 Jul 2013

ECHR Article 7-1
Nullum crimen sine lege
Interpretation of offence of tax evasion derived by reference to other areas of law: no violation
Article 6
Civil proceedings
Criminal proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Alleged lack of impartiality of trial judge who had already taken procedural decisions adverse to defence and had sat in trial of co-accused: no violation
Article 6-3-b
Adequate facilities
Adequate time
Need for applicants to study large volume of evidence in difficult prison conditions, but supported by highly qualified legal team: no violation
Article 6-3-c
Defence through legal assistance
Systematic perusal by prison authorities and trial judge of communications between accused and their lawyers: violation
Article 6-3-d
Examination of witnesses
Refusal to allow defence to cross-examine expert witnesses called by the prosecution or to call their own expert evidence: violation
Article 8
Article 8-1
Respect for family life
Respect for private life
Imprisonment in penal colonies thousands of kilometres from prisoners’ homes: violation
Article 18
Restrictions for unauthorised purposes
Allegedly politically motivated criminal proceedings against applicants: violation
Article 34
Hinder the exercise of the right of petition
Disciplinary and other measures against the lawyers acting for applicants in case pending before European Court: failure to comply with Article 8
Facts – Before their arrest the applicants were senior managers and major shareholders of a large industrial group which included the Yukos oil company. They were among the richest men in Russia. Mr Khodorkovskiy, the first applicant, was also politically active: he allocated significant funds to support opposition parties and funded several development programmes and NGOs. In addition, Yukos pursued large business projects which went against the official petroleum policy.
In 2003 the applicants were arrested and detained on suspicion of the allegedly fraudulent privatisation of one of the companies in the group. Subsequently tax and enforcement proceedings were brought against Yukos oil company, which was put into liquidation. New charges were brought against the applicants relating to alleged tax evasion through the registration of trading companies, which in fact had no business activities, in a low-tax zone, and through allegedly false income tax returns. In 2005 the applicants were found guilty of most of the charges. They were sentenced to nine years’ imprisonment and ordered to pay the State the equivalent of over EUR 500,000,000 in respect of unpaid company taxes. Their prison sentences were reduced to eight years on appeal. Both applicants were sent to serve their sentences in remote colonies, thousands of kilometres from their Moscow homes.
In their applications to the European Court, the applicants complained of various breaches of the Convention, in particular of their right to a fair trial (Article 6 – 1) and of their right not to be tried of an offence that was not an offence when it was committed (Article 7).
Law – Article 6 – 1: Both applicants complained of several distinct breaches of this provision. The first group of their arguments concerned alleged bias on the part of the presiding judge. The second group to procedural unfairness, in particular: a lack of time and facilities to prepare the defence, an inability to enjoy effective legal assistance, and an inability to examine prosecution evidence or adduce evidence for the defence.
(a) Impartiality – The applicants claimed that procedural decisions taken by the judge during their trial were indicative of bias, that the judge had herself been under investigation during their trial and that she was biased because of her previous findings in the case of another top Yukos manager.
As to the first point, the Court had to have stronger evidence of personal bias than a series of procedural decisions unfavourable to the defence. There was nothing in the trial judge’s decisions to reveal any particular predisposition against the applicants. As to the second point, the allegation that the trial judge was herself under investigation was based on rumour, and could not found a claim of impartiality. As to the final point – the fact that the judge had already sat in a case concerning another senior Yukos manager – the Court had previously clarified that the mere fact that a judge had already tried a co-accused was not, in itself, sufficient to cast doubt on the judge’s impartiality. Criminal adjudication frequently involved judges presiding over various trials in which a number of co-accused stood charged and the work of criminal courts would be rendered impossible if, by that fact alone, a judge’s impartiality could be called into question. An examination was, however, needed to determine whether the earlier judgments contained findings that actually prejudged the question of the applicant’s guilt. The judge in the applicants’ case was a professional judge, a priori prepared to disengage herself from her previous experience in the other manager’s trial. The judgment in the manager’s case did not contain findings that prejudged the question of the applicants’ guilt in the subsequent proceedings and the judge was not bound by her previous findings, for example as regards the admissibility of evidence, either legally or otherwise.
Conclusion: no violation (unanimously).
(b) Fairness of the proceedings
(i) Article 6 – 1 in conjunction with Article 6 – 3 (b): Time and facilities for the preparation of the defence – The second applicant had had eight months and twenty days to study over 41,000 pages of his case-file, and the first applicant five months and eighteen days to study over 55,000 pages. The Court noted the complexity of the documents, the need to make notes, compare documents, and discuss the case-file with lawyers. It also took account of the breaks in the schedule of working with the case-file, and of the uncomfortable conditions in which the applicants had had to work (for example, they had been unable to make photocopies in prison or to keep copies of documents in their cells and there had been restrictions on their receiving copies of documents from their lawyers). However, the issue of the adequacy of time and facilities afforded to an accused had to be assessed in the light of the circumstances of each particular case. The applicants were not ordinary defendants: they had been assisted by a team of highly professional lawyers of great renown, all privately retained. Even if they were unable to study each and every document in the case file personally, that task could have been entrusted to their lawyers. Importantly, the applicants were not limited in the number and duration of their meetings with their lawyers. The lawyers were able to make photocopies; the applicants were allowed to take notes from the case-file and keep their notebooks with them. Indeed, the applicants, who both had university degrees, were senior executives of one of the largest oil companies in Russia and knew the business processes at the heart of the case arguably better than anybody else. Thus, although the defence had had to work in difficult conditions at the pre-trial stage, the time allocated to the defence for studying the case file was not such as to affect the essence of the right guaranteed by Article 6 — 1 and 3 (b).
The Court further examined the conditions in which the defence had had to work at the trial and during the appeal proceedings. In particular, at some point the judge had decided to intensify the course of the trial and hold hearings every day. However, it had not been impossible for the applicants to follow the proceedings and the defence had been able to ask for adjournments when necessary.
At the appeal stage the defence had had over three months to draft written pleadings and to prepare for oral argument. Although the defence had had to start preparing their appeal without having the entirety of the trial materials before them and although there had been doubts as to the accuracy of the trial record, the Court was not persuaded that any such inaccuracies had made the conviction unsafe. Furthermore, the defence was aware of the procedural decisions that had been taken during the trial and what materials had been added. They had audio recordings of the trial proceedings and could have relied on them in the preparation of their points of appeal. The difficulties experienced by the defence during the appeal proceedings had thus not affected the overall fairness of the trial.
Conclusion: no violation (unanimously).
(ii) Article 6 – 1 in conjunction with Article 6 – 3 (c): Lawyer-client confidentiality – The applicants had claimed that that their confidential contacts with their lawyers had been seriously hindered. The Court reiterated that any interference with privileged material and, a fortiori, the use of such material against the accused in the proceedings should be exceptional and justified by a pressing need and would always be subjected to the strictest scrutiny.
As to the applicants’ complaint that one of their lawyers had received summonses from the prosecution, the Court noted that the lawyer concerned had refused to testify and that his refusal had not led to any sanctions against him. Accordingly, in the particular circumstances of the present case, lawyer-client confidentiality had not been breached on account of that episode.
In contrast, by carrying out a search of that lawyer’s office and seizing his working files, the authorities had deliberately interfered with the secrecy of lawyer-client contacts. The Court saw no compelling reasons for that interference. The Government had not explained what sort of information the lawyer might have had, how important it was for the investigation, or whether it could have been obtained by other means. At the relevant time the lawyer was not under suspicion of any kind. Most significantly, the search of his office had not been accompanied by appropriate procedural safeguards, such as authorisation by a separate court warrant, as required by the law. The search and seizure were thus arbitrary.
Another point of concern was the prison administration’s practice of perusing all written documents exchanged between the applicants and their lawyers during the meetings in the remand prison. Such perusal had no firm basis in the domestic law, which did not specifically regulate such situations. Furthermore, notes, drafts, outlines, action plans and other like documents prepared by the lawyer for or during a meeting with his detained client were to all intents and purposes privileged material. Any exception from the general principle of confidentiality was only permissible if the authorities had reasonable cause to believe that professional privilege was being abused in that the contents of the document concerned might endanger prison security or the safety of others or was otherwise of a criminal nature. In the present case, however, the authorities had taken as their starting point the opposite presumption, namely that all written communications between a prisoner and his lawyer were suspect. Despite there being no ascertainable facts to show that either the applicants or their lawyers might abuse professional privilege, the measures complained of had lasted for over two years. In the circumstances the rule whereby defence working documents were subject to perusal and could be confiscated if not checked by the prison authorities beforehand was unjustified, as were the searches of the applicants’ lawyers.
Finally, as regards the conditions in which the applicants had been able to communicate with their lawyers in the courtroom the trial judge had requested the defence lawyers to show her all written documents they wished to exchange with the applicants in accordance with the prison authorities’ security arrangements. While checking drafts and notes prepared by the defence lawyers or the applicants the judge might have come across information or arguments which the defence would not wish to reveal and which could have affected her opinion about the factual and legal issues in the case. In the Court’s opinion, it would be contrary to the principle of adversarial proceedings if the judge’s decision was influenced by arguments and information which the parties did not present and did not discuss at an open trial. Furthermore, the oral consultations between the applicants and their lawyers could have been overheard by the prison escort officers. During the adjournments the lawyers had had to discuss the case with their clients in close vicinity of the prison guards. In sum, the secrecy of the applicants’ exchanges, both oral and written, with their lawyers had been seriously impaired during the hearings.
Conclusion: violation (unanimously).
(iii) Article 6 – 1 in conjunction with Article 6 – 3 (d):- Taking and examination of evidence – As regards the applicants’ complaints that evidence from two experts consulted by the prosecution had been admitted without the applicants being able to challenge it, the Court noted, firstly, that the fact that the prosecution had obtained an expert report without any involvement of the defence did not of itself raise any issue under the Convention, provided that the defence subsequently had an opportunity to examine and challenge both the report and the credibility of those who prepared it, through direct questioning before the trial court.
In response to the Government’s submission that the defence had not shown why it had been necessary to question the expert witnesses, the Court stated that, contrary to the situation with defence witnesses, an accused was not required to demonstrate the importance of a prosecution witness. If the prosecution decided to rely on a particular person’s testimony as being a relevant source of information and if the testimony was used by the trial court to support a guilty verdict, the presumption arose that the personal appearance and questioning of the person concerned were necessary, unless the testimony was manifestly irrelevant or redundant. The two experts had clearly been key witnesses since their conclusions went to the heart of some of the charges against the applicants. The defence had taken no part in the preparation of the experts’ report and had not been able to put questions to them at an earlier stage. In addition, the defence had explained to the district court why they needed to question the experts and there were no good reasons for preventing them from coming to the court. Even if there were no major inconsistencies in the report, questioning experts could reveal possible conflicts of interest, insufficiency of the materials at their disposal or flaws in the methods of examination.
The applicants had also complained of the trial court’s refusal to admit expert evidence (both written and oral) proposed by the defence for examination at the trial. The Court noted that the trial court had refused to admit certain expert evidence which it deemed it irrelevant or useless. In that connection, the Court reiterated that the requirement of a fair trial did not impose an obligation on trial courts to order an expert opinion or any other investigative measure merely because a party had sought it and, having examined the nature of the reports in question, the Court was prepared to accept that the primary reason for not admitting certain of them was their lack of relevance or usefulness which matters were within the trial court’s discretion to decide. However, two audit reports (by Ernst and Young and Price Waterhouse Coopers) were in fact rejected for reasons related not to their content but to their form and origins. Unlike the other expert evidence the defence had sought to adduce, these reports were non-legal and concerned essentially the same matters as the reports produced by the prosecution and so were relevant to the accusations against the applicants. By excluding that evidence, the trial court had put the defence in a disadvantageous position as the prosecution had been entitled to select experts, formulate questions and produce expert reports, while the defence had had no such right. Furthermore, in order effectively to challenge a report by an expert the defence had to have the same opportunity to introduce their own expert evidence. The mere right of the defence to ask the court to commission another expert examination did not suffice. In practice, however, the only option that had been available to the applicants under Russian law had been to obtain oral questioning of ‘specialists’ at the trial, but ‘specialists’ had a different procedural status to ‘experts’, as they had no access to primary materials in the case and the trial court refused to consider their written opinions. In the circumstances, the decision to exclude the two audit reports had created an imbalance between the defence and the prosecution in the area of collecting and adducing ‘expert evidence’, thus breaching the equality of arms between the parties.
Conclusion: violation (unanimously).
Article 7
(a) Alleged procedural obstacles to prosecution – The applicants had claimed that by virtue of a Constitutional Court ruling of 27 May 2003 they could not be held criminally liable for tax evasion before their tax liability had been established in separate proceedings. The Court was not persuaded that the applicants’ understanding of that ruling was correct. It noted, however, that in any event the alleged ‘procedural obstacles’ did not mean that the acts imputed to the applicants were not defined as ‘criminal offences’ when they were committed. There had therefore been no violation of Article 7 on that account.
(b) Novel interpretation of the concept of ‘tax evasion’ – The applicants had argued that they had suffered from a completely novel and unpredictable interpretation of the provisions (Articles 198 and 199 of the Criminal Code) under which they were convicted. The Court observed that while those provisions defined tax evasion in very general terms, by itself such a broad definition did not raise any issue under Article 7. Forms of economic activity were in constant development, and so were methods of tax evasion. In order to define whether particular behaviour amounted to tax evasion in the criminal-law sense the domestic courts could invoke legal concepts from other areas of law. The law in this area could be sufficiently flexible to adapt to new situations, provided it did not become unpredictable. Thus, although in the criminal-law sphere there was no case-law directly applicable to the transfer-pricing arrangements and allegedly sham transactions at the heart of the applicants’ case, the concept of sham transaction was known to Russian law and the courts had the power to apply the ‘substance-over-form’ rule and invalidate a transaction as sham under the Civil and Tax Codes. The Court reiterated that in this area it was not called upon to reassess the domestic courts’ findings, provided they were based on a reasonable assessment of the evidence. In the present case, despite certain flaws, the domestic proceedings could not be characterised as a flagrant denial of justice.
The Court next turned to the question whether the substantive findings of the domestic courts were arbitrary or manifestly unreasonable.
(i) Charges under Article 199 of the Criminal Code (trading companies’ operation in the low-tax zone and the technique of ‘transfer pricing’) – While acknowledging that legitimate methods of tax minimisation could exist, the Court noted that the scheme deployed by Yukos was not fully transparent and that some elements of the scheme that might have been crucial for determining the companies’ eligibility for tax cuts had been concealed from the authorities. For instance, the applicants had never informed the tax authorities of their true relation to the trading companies. The benefits of the trading companies had been returned to Yukos indirectly. All business activities which had generated profit were in fact carried out in Moscow, not in a low-tax zone. The trading companies, which existed only on paper, had no real assets or personnel. Tax minimisation was the sole reason for the creation of the trading companies in the low-tax zone. Such behaviour could not be compared to that of a bona fide taxpayer making a genuine mistake. Finally, it was difficult for the Court to imagine that the applicants, as senior executives and co-owners of Yukos, had not been aware of the scheme or that the trading companies’ fiscal reports did not reflect the true nature of their operations. Thus, the applicants’ acts could be reasonably interpreted as submitting false information to the tax authorities, thus constituting the actus reus of the offence of tax evasion.
(ii) Charges under Article 198 of the Criminal Code (personal income-tax evasion) – In so far as the personal income tax evasion was concerned, the applicants had argued that they had given consulting services to foreign firms and that the tax cuts they had received as ‘individual entrepreneurs’ were legitimate. However, the domestic courts had concluded that such service agreements were in fact de facto payments for the applicants’ work in Yukos and its affiliated structures that would normally have been taxable under the general taxation regime and that the applicants had knowingly misinformed the tax authorities about the true nature of their activities. Those conclusions were not unreasonable or arbitrary.
(c) Application of allegedly dormant criminal law – Lastly, the Court did not accept the applicants’ argument that the authorities’ failure to prosecute and/or convict other businessmen who had been using similar tax-minimisation techniques had made such techniques legitimate and excluded criminal liability. While in certain circumstances a long-lasting tolerance of certain conduct, otherwise punishable under the criminal law, could grow into de facto decriminalisation of such conduct, this was not the case here, primarily because the reasons for such tolerance were unclear. It was possible that the authorities had simply not had sufficient information or resources to prosecute the applicants and/or other businessmen for using such schemes. It required a massive criminal investigation to prove that documents submitted to the tax authorities did not reflect the true nature of business operations. Finally, there was no evidence that tax minimisation schemes used by other businessmen had been organised in exactly the same way as that employed by the applicants. The authorities’ attitude could not therefore be said to have amounted to a conscious tolerance of such practices.
In sum, Article 7 of the Convention was not incompatible with judicial law-making and did not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development was consistent with the essence of the offence and could reasonably be foreseen. While the applicants may have fallen victim to a novel interpretation of the concept of tax evasion, it was based on a reasonable interpretation of the domestic law and consistent with the essence of the offence.
Conclusion: no violation (unanimously).
Article 8: The applicants had complained that their transfer to penal colonies situated thousands of kilometres from their homes had made it impossible for them to see their families. The Court accepted that the situation complained of constituted interference with the applicants’ private and family life and was prepared to accept that the interference was lawful and pursued the legitimate aims of preventing disorder and crime and of securing the rights and freedoms of others.
As to whether it was necessary in a democratic society, the Curt noted, firstly, that it was very likely that the rule set out in the Russian Code of Execution of Sentences, which convicts in areas where prisons were overpopulated to be sent to the next closest region (but not several thousand kilometres away), had not been followed in the applicants’ case. It was hardly conceivable that there were no free places for the applicants in any of the many colonies situated closer to Moscow. The Court stressed that the distribution of the prison population must not remain entirely at the discretion of the administrative bodies and that the interests of convicts in maintaining at least some family and social ties had to somehow be taken into account. In the absence of a clear and foreseeable method of distribution of convicts amongst penal colonies, the system had failed to provide a measure of legal protection against arbitrary interference by public authorities and had led to results that were incompatible with respect for the applicants’ private and family lives.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1: The first applicant had complained that, after convicting him of corporate-tax evasion, the trial court had made an award of damages which overlapped with the claims for back payment of taxes that had been brought against Yukos. The Court found, firstly, that the first applicant’s obligation to pay certain outstanding taxes could be considered an interference with his possessions falling within the scope of Article 1 of Protocol No. 1.
However, it was unnecessary for the Court to examine separately the first applicant’s claim that the State had been awarded the same amount of outstanding corporate taxes twice, as in any event, the interference did not have a lawful basis. The Court accepted that where a limited-liability company was used merely as a facade for fraudulent actions by its owners or managers, piercing the corporate veil may be an appropriate solution for defending the rights of its creditors, including the State. However, there had to be clear rules allowing the State to do this if the interference was not to be arbitrary. Neither the Russian Tax Code at the material time nor the Civil Code permitted the recovery of a company’s tax debts from its managers. Furthermore, the domestic courts had repeatedly interpreted the law as not allowing liability for unpaid company taxes to be shifted to company executives. Finally, the trial court’s findings regarding the civil claim were extremely short and contained no reference to applicable provisions of the domestic law or any comprehensible calculation of damages, as if it was an insignificant matter. In sum, neither the primary legislation then in force nor the case-law allowed for the imposition of civil liability for unpaid company taxes on the company’s executives. The award of damages in favour of the State had thus been arbitrary.
Conclusion: violation (unanimously).
Article 18 (alleged political motivation for prosecution): The Court reiterated that the whole structure of the Convention rested on the general assumption that public authorities in the member States acted in good faith. Though rebuttable in theory, that assumption was difficult to overcome in practice: an applicant alleging that his rights and freedoms were limited for an improper reason had to show convincingly that the real aim of the authorities was not the same as that proclaimed. Thus, the Court had to apply a very exacting standard of proof to such allegations.
That standard had not been met in the applicants’ case. While the circumstances surrounding it could be interpreted as supporting the applicants’ claim of improper motives, there was no direct proof of such motives. The Court was prepared to admit that some political groups or government officials had had their own reasons for pushing for the applicants’ prosecution. However, that was insufficient to conclude that the applicants would not have been convicted otherwise. In the final reckoning, none of the accusations against them even remotely concerned their political activities. Elements of ‘improper motivation’ which may have existed in the instant case did not make the applicants’ prosecution illegitimate from beginning to end: the fact remained that the accusations against the applicants of common criminal offences, such as tax evasion and fraud, were serious, that the case against them had a ‘healthy core’, and that even if there was a mixed intent behind their prosecution, this did not grant them immunity from answering the accusations.
Conclusion: no violation (unanimously).
Article 34: The first applicant had further complained that, in order to prevent him from complaining to the European Court, the authorities had harassed his lawyers.
In the Court’s opinion, there was a significant difference between the first applicant’s allegations under Article 18 and those under Article 34. In so far as his prosecution and trial were concerned, the aims of the authorities for bringing the first applicant to trial and convicting him were evident and did not require further explanation. By contrast, the aim of the disciplinary and other measures directed against his lawyers was far from evident. The Court had specifically invited the Government to explain the reasons for the disbarment proceedings, extraordinary tax audit and denial of visas to the first applicant’s foreign lawyers, but the Government had remained silent on those points. In such circumstances it was natural to assume that the measures directed against the first applicant’s lawyers were linked to his case before the Court. In sum, the measures complained of had been directed primarily, even if not exclusively, at intimidating the lawyers working on the first applicant’s case before the Court. Although it was difficult to measure the effect of those measures on his ability to prepare and argue his case, it was not negligible.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of Article 3 of the Convention on account of the fact that the second applicant appeared at his trial in a metal cage and no violation of that provision in respect of the conditions of his detention in the remand prison; a violation of Article 5 – 3 of the Convention in respect of the length of the second applicant’s pre-trial detention and a violation of Article 5 – 4 on account of delays in the review of his detention.
Article 41: EUR 10,000 to the first applicant in respect of non-pecuniary damage. The second applicant’s pecuniary claims were rejected in full.
(See also Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011, Information Note 141; and OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, 20 September 2011, Information Note 144)

11082/06 13772/05 – Chamber Judgment, [2013] ECHR 747, 11082/06 13772/05 – Legal Summary, [2013] ECHR 774
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights, Legal Professions, Crime, Prisons

Leading Case

Updated: 09 November 2021; Ref: scu.515133

Racz v Home Office: HL 17 Dec 1993

The Home Office can be liable for the actions of prison officers which amounted to an official misfeasance. The principles of vicarious liability apply as much to misfeasance in public office as to other torts involving malice, knowledge or intention. Lord Jauncey said: ‘My Lords, in my view, striking out paragraph 6 of this claim could only be justified if the inevitable result of proof of the averments therein was that the unauthorised acts of the prison officers was so unconnected with their authorised duties as to be quite independent of and outside those duties’.
And ‘ the Court of Appeal were dealing with the question of mode of trial upon the basis that the claim in respect of misfeasance in public office would not proceed. However, the facts relevant to that claim are likely to be identical to those which will be considered under the remaining heads of claim and the issue of exemplary damages also falls to be considered under those heads of claim.’ However, there can be no false imprisonment of a prisoner who is lawfully confined under section 12(1) of the 1952 Act, and a restraint upon movement which is not in accordance with the Prison Rules 1964 does not give rise to a cause of action for either false imprisonment or breach of statutory duty.

Lord Jauncey of Tullichettle
Times 17-Dec-1993, Independent 17-Dec-1993, [1994] 2 WLR 23, [1994] 1 All ER 97, [1994] 2 AC 45
England and Wales
Citing:
CitedCanadian Pacific Railway Co v Lockhart PC 1941
When considering the imposition of vicarious liability, ‘the first consideration is the ascertainment of what the servant is employed to do.’ (Lord Thankerton) and ‘It is clear that the master is responsible for acts actually authorised by him: for . .

Cited by:
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .
CitedLister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
CitedHouchin v Lincolnshire Probation Trust QBD 9-Apr-2013
houchin_lincsPSQBD2013
The defendant sought to have the claim struck out. The prisoner said that the defendant’s probation officer had through misfeasance in public office arranged for his transfer back to secure conditions from open ones. The parole board panel had found . .
CitedElliott v Chief Constable of Wiltshire and Others ChD 20-Nov-1996
Vice-Chancellor was asked to consider whether to strike out a statement of claim based upon alleged misfeasance by a police officer in his public office. The allegation against the police officer was that he had deliberately and falsely supplied . .

Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Prisons, Torts – Other

Leading Case

Updated: 09 November 2021; Ref: scu.85636

McGetrick, Regina (on The Application of) v The Parole Board and Another: Admn 4 Apr 2012

Parole Board Must Consider All Material Before It

The court was asked whether it was lawful for the Parole Board, when deciding whether to release a prisoner on licence, to take into account material provided by the Secretary of State containing factual allegations about the prisoner’s pre-trial conduct, which formed part of the original prosecution case against him, but in relation to which he was never convicted.
Held: A declaration that the Board’s action was unlawful was refused. The Board was ‘dealing with a case’ within section 239 of the 2003 Act, and was therefore required by the statute to consider all the material placed before it.

Stanley Burnton LJ, King J
[2012] EWHC 882 (Admin), [2012] ACD 83, [2012] 1 WLR 2488, [2012] WLR(D) 114
Bailii, WLRD
Criminal Justice Act 2003 239, Parole Board Rules 2011
England and Wales
Cited by:
Appeal fromMcGetrick, Regina (on The Application of) v Parole Board and Another CA 14-Mar-2013
The claimant prisoner appealed against refusal of review of the use of allegations and evidence of offences not tried against him when deciding as to his release on licence. The material would suggest that he might pose a continuing risk to . .

Lists of cited by and citing cases may be incomplete.

Prisons

Leading Case

Updated: 02 November 2021; Ref: scu.452479

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: The appeal failed (by a majority). The court should focus on the need of the Parole Board to carry out its work balancing the rights of the prisoner and the needs of society.
Lord Carswell said: ‘The present case is a classic instance of weighing up competing interests. The appellant’s interest in presenting his case effectively with sufficient knowledge of the allegations made against him is clear and strong. The informant has a compelling interest in being protected from dangerous consequences which might ensue if any indication leaked out which could lead to his identification. Thirdly, there is the public interest in ensuring that the Parole Board has all proper material before it to enable it to decide which prisoners are safe to release from prison. Having balanced these interests, I conclude that the interests which I have outlined of the informant and the public must prevail over those of the appellant, strong though the latter may be. I emphasise, however, that my conclusions relating to the powers of the Parole Board to use the SAA procedure and their compatibility with article 5(4) are a decision in principle, for that was all that was before the House. We were not asked, nor were we in a position to decide, whether it was proper in the instant case of the appellant. I accept that there may well be cases in which it would not be sufficiently fair to be justifiable and each case will require consideration on its own facts.’
The withholding of material was a clear breach of accepted rules of natural justice. The special advocate procedure had severe shortcomings. The statute made no provision for the procedure adopted, and it was unlawful Lord Steyn: ‘it is a formalistic outcome to describe a phantom hearing involving a special advocate (as directed by the Board) as meeting minimum standards of fairness. In truth the special advocate procedure empties the prisoner’s fundamental right to an oral hearing of all meaningful content.’ (Lord Bngham and Lord Steyn dissenting).

Lord Bingham of Cornhill, Lord Woolf, Lord Steyn, Lord Rodger of Earlsferry, Lord Carswell
[2005] UKHL 45, [2005] 2 AC 738, [2005] HRLR 38, [2005] UKHRR 939, [2006] 1 All ER 39, [2005] RPC 10, [2005] 3 WLR 152
Bailii, House of Lords
Crime (Sentences) Act 1997 28(5), European Convention on Human Rights 5
England and Wales
Citing:
Appeal fromRoberts v Parole Board CA 28-Jul-2004
The discretionary life-prisoner faced a parole board. The Secretary of State wished to present evidence, but wanted the witness to be protected. The Parole Board appointed special counsel to hear the evidence on behalf of the prisoner on terms that . .
CitedRegina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
CitedGirling v Parole Board and Secretary of State for the Home Department Admn 8-Apr-2005
Once the punitive or tariff term of imprisonment on a convicted murderer, is completed, risk to life and limb provides the sole ground for continued detention. The Parole Board, being subject to directions from the Home Secretary, was not an . .
At First InstanceRoberts v Parole Board Admn 19-Dec-2003
The prisoner had been convicted in 1996 of the murder of three police officers. His tariff had been fixed at 30 years. Material was to be placed before the parole board which was not to be disclosed to the appellant or his legal advisers. Instead it . .
CitedWeeks v The United Kingdom ECHR 2-Mar-1987
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous.
Held: ‘The court agrees with the Commission and the . .
CitedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
CitedRegina 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: . .
CitedRoberts v Parole Board Admn 19-Dec-2003
The prisoner had been convicted in 1996 of the murder of three police officers. His tariff had been fixed at 30 years. Material was to be placed before the parole board which was not to be disclosed to the appellant or his legal advisers. Instead it . .
CitedRegina v Parole Board, ex Parte Watson CA 11-Mar-1996
The test as to whether there was still a need to protect the public safety from the defendant was just as appropriate when considering the revocation of a licence, as it was when the need for continued detention was being reviewed before the grant . .
CitedRegina 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 . .
CitedRegina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
CitedDoorson 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, . .
CitedVan Mechelen And Others v The Netherlands ECHR 23-Apr-1997
A Dutch court had convicted the applicants of attempted manslaughter and robbery on the basis of statements made, before their trial, by anonymous police officers, none of whom gave evidence before the Regional Court or the investigating judge. The . .
CitedTinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .
CitedJasper 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 . .
CitedIn Re K (Infants) CA 2-Jan-1963
The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly . .
CitedRe D (Minors) (Adoption Reports: Confidentiality) HL 1-Sep-1995
The House considered whether it was right for a tribunal to see and rely upon papers not disclosed to the parties. Lord Mustill said: ‘a first principle of fairness that each party to a judicial process shall have an opportunity to answer by . .
CitedIn Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
CitedRegina v Parole Board and Another ex parte Wilson CA 6-May-1992
It was natural justice to allow a discretionary lifer to see the reports which had been prepared for consideration on his application for release on licence. W had been sentenced to life imprisonment for buggery, and was a discretionary life . .
CitedLamy v Belgium ECHR 30-Mar-1989
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; . .
CitedD (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
CitedRegina v Secretary of State for Home Department Ex Parte Hickey and Others, Same Ex Parte Bamber; Same Ex Parte Malone (No 2) QBD 29-Nov-1994
The Home Secretary is obliged to disclose new evidence to a defendant before rejecting his application for a reference to Court of Appeal. The Home Secretary’s powers to refer a case back to the Court of Appeal (Criminal Division) was an integral . .
CitedKostovski v The Netherlands ECHR 20-Nov-1989
No Anonymity for Witnessses in Criminal Trial
K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled . .
CitedRegina v Secretary of State for Home Department ex parte H and Others, Regina v Same ex parte Hickey CA 29-Jul-1994
A discretionary life prisoner who had been transferred to a mental hospital is not automatically eligible for a certificate under the section. The right conferred on a discretionary life prisoner by section 34 of the 1991 Act did not extend to those . .
CitedBrandstetter v Austria ECHR 28-Aug-1991
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; No violation of Art. 6-1+6-3-d; No violation of Art. 6-3-c; Pecuniary damage – claim . .
CitedEdwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
mentionedSanchez-Reisse v Switzerland ECHR 21-Oct-1986
That a detainee may be heard either in person or, where necessary, through some form of representation can be a fundamental procedural guarantee in matters of deprivation of liberty. Article 5(4)was inspired by the English law of habeas corpus. . .
MentionedAl-Nashif v Bulgaria ECHR 20-Jun-2002
Hudoc Judgment (Merits and just satisfaction) Preliminary objections dismissed (non-exhaustion, abuse of right of petition); Violation of Art. 5-4; Violation of Art. 8; Violation of Art. 13; Not necessary to . .
MentionedLuca v Italy ECHR 27-Feb-2001
The accused had been convicted. After exercising his right to silence, there were read to the court accounts of statements made by co-accused but without an opportunity for him to cross examine the witnesses.
Held: Saunders had established the . .
CitedGarcia Alva v Germany ECHR 13-Feb-2001
The complainant had been arrested on suspicion of drug trafficking and was detained on remand. When he brought an application for review of his detention his lawyers were not given access to a number of documents in the file, including the . .
CitedThe Secretary of State for the Home Department v M CA 18-Mar-2004
The applicant had been detained under the appellant’s certificate that he was a suspected terrorist.
Held: The fact that there were suspicions surrounding the detainee did not mean that those suspicions were necessarily reasonable suspicions . .
CitedAttorney General and Another v Great Eastern Railway Company HL 27-May-1880
An Act of Parliament authorised a company to construct a railway. Two other companies combined and contracted with the first to supply rolling stock. An injunction was brought to try to restrain this, saying that such a contract was not explicitly . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 21-May-1997
The Home Secretary may not later extend the tariff for a lifer after it had been set by an earlier Home Secretary merely to satisfy needs of retribution and deterrence. ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedChahal 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 . .
CitedColes v Odhams Press Ltd 1936
Lord Hewart CJ said that courts should avoid ‘taking blind shots at a hidden target’. . .
CitedBouamar v Belgium ECHR 29-Feb-1988
Hudoc Violation of Art. 5-1; Violation of Art. 5-4; Just satisfaction reserved; Judgment (Just satisfaction) Struck out of the list (friendly settlement)
A person detained as a juvenile in need of . .
CitedHussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. There had been a violation of article 5(4) because the applicant who had been detained at Her Majesty’s pleasure was unable, after the expiry of his . .
CitedSecretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
CitedRegina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
MentionedRegina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
CitedWaite v The United Kingdom ECHR 10-Dec-2002
The claimant had been sentenced to be detained at Her Majesty’s pleasure when a youth. After release on licence, the Parole Board met and revoked that licence without an oral hearing, and in contravention of the rules. He did not dispute the facts . .
CitedRegina v Davis; Regina v Rowe; Regina v Johnson CA 10-Mar-1993
Guidance was given on the procedures to be followed for applications for non-disclosure for public interest immunity. The court identified three types of case. In the first, and most frequent case the prosecution must notify the defence of the . .
CitedRegina on the Application of S v Waltham Forest Youth Court, The Crown Prosecution Service, The Secretary of State for the Home Department Admn 31-Mar-2004
There was no inherent power to allow a defendant to give evidence by live link, on the ground that Parliament had sought since 1988 to provide exclusively for the circumstances in which live link might be used in a criminal trial. . .
QuotedUnited States v Rabinowitz 1950
(US Supreme Court) Justice Frankfurter said: ‘It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.’ . .
CitedRegina v Richmond Upon Thames London Borough Council, ex parte McCarthy and Stone (Developments) Ltd HL 14-Nov-1991
A Local Authority was not able to impose charge for inquiries as to speculative developments and similar proposals, or for consultations, and pre-planning advice. There was no statutory authority for such a charge, and it was therefore unlawful and . .
CitedHazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .

Cited by:
CitedMcClean, Re HL 7-Jul-2005
The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a . .
CitedAl-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
CitedHenshall v General Medical Council and others CA 13-Dec-2005
The claimant had lodged a complaint against a medical practitioner. The preliminary proceedings committee had accepted evidence from the doctor, but had not given the complainant opportunity to see it and comment upon it.
Held: the rules must . .
CitedMB, 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 . .
CitedGardner, Regina (on the Application Of) v the Parole Board Admn 21-Dec-2005
The court considered whether a parole review board can exclude the prisoner from part of a hearing and if so on what grounds.
Held: The parole board had the required power. Both Rule 19 (2) and 19 (3) gave the panel the power which they . .
CitedGardner, Regina (on the Application of) v Parole Board CA 5-Sep-2006
The prisoner challenged his exclusion from a parole board hearing whilst evidence was taken. He was serving a long sentence for a violent attack, and had re-offended only shortly after his release. His ex-wife had been unwilling to confront him, and . .
CitedA, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
CitedMurungaru v Secretary of State for the Home Department and others Admn 4-Oct-2006
The claimant challenged the decision of the respondent that his continued presence in the UK would not be conducive to the public good. He had been given multiple entry visas which had been revoked.
Held: The refusal of entry interfered with . .
See AlsoRoberts, Regina (on the Application of) v The Parole Board Admn 7-Nov-2008
The prisoner was sentenced to life imprisonment for the murder of three police officers in 1966. He served a longer time than the recommended minimum and had been transferred to an open prison anticipating release on licence. He now complained of . .
CitedAl Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
CitedBank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
CitedAl Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
CitedSher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
CitedChief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
CitedAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
CitedMcGetrick, Regina (on The Application of) v Parole Board and Another CA 14-Mar-2013
The claimant prisoner appealed against refusal of review of the use of allegations and evidence of offences not tried against him when deciding as to his release on licence. The material would suggest that he might pose a continuing risk to . .
CitedBank 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 . .

Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.228285

Edwards v The United Kingdom: ECHR 14 Mar 2002

The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His family asserted that the prison authorities had failed to protect his Article 2 right to life, and Article 13 right to a remedy. A series of shortcomings had been found in the Prison Service’s management, but no remedy had been offered.
Held: The deceased’s article 2 and 13 rights had been infringed. There had been no inquest, and the enquiry, whilst detailed, had been private and without the ability to compel witnesses to attend. The limits placed on the appellants’ involvement meant that that enquiry could not be seen as a proper opportunity for them to represent their interests. The remedies under the 1976 Act would not provide damages for non-financial loses, and legal aid would not be available.
‘The applicants, parents of the deceased, were only able to attend three days of the inquiry when they were themselves giving evidence. They were not represented and were unable to put any questions to witnesses, whether through their own counsel, or, for example, through the Inquiry Panel. They had to wait for the publication of the final version of the Inquiry Report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject-matter of the Inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests.’

I Cabral Barreto, President and Judges Sir Nicolas Bratza, L. Caflisch, P. Kuris, R. Turmen, H. S. Greve and K. Traja
Times 01-Apr-2002, 46477/99, (2002) 35 EHRR 487, [2002] ECHR 303
Worldlii, Bailii
European Convention on Human Rights, Fatal Accidents Act 1976
Human Rights
Cited by:
AppliedRegina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
CitedKhan, 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 . .
CitedAmin, 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 . .
CitedMiddleton, 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.
CitedMiddleton, 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.
CitedD, 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 . .
CitedPlymouth City Council v HM Coroner for the County of Devon and Another Admn 27-May-2005
The local authority in whose care the deceased child had been held challenged a decision by the coroner not to limit his inquiry to the last few days of the child’s life. The coroner had decided that he had an obligation to conduct a wider enquiry . .
CitedTakoushis, 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 . .
CitedRegina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
CitedD, 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 . .
CitedVan Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
CitedGentle, 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 . .
CitedHertfordshire 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 . .
CitedJL, 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 . .
CitedSavage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
CitedRabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
See AlsoEdwards v The United Kingdom ECHR 3-Dec-2009
. .
CitedMousa and Others v Secretary of State for Defence and Another Admn 16-Jul-2010
The claimants sought judicial review of the respondent in respect of alleged mistreatment when detained in Iraq. They sought a judicial inquiry. . .
CitedRabone 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 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.168003

Waite v The United Kingdom: ECHR 10 Dec 2002

The claimant had been sentenced to be detained at Her Majesty’s pleasure when a youth. After release on licence, the Parole Board met and revoked that licence without an oral hearing, and in contravention of the rules. He did not dispute the facts which led to his recall. However, he submitted that issues arose concerning his character and mental state which rendered an oral hearing essential to the fairness of the proceedings.
Held: The effect of compliance with article 5.4 by the adoption of ppropriate procedures did not extend beyond the consequences of the first court decision. Where new issues arose affecting the lawfulness of a detention, such as after the expiry of the initial tariff period, the article 5.4 rights were revived. In this case they had been breached. There was no breach of article 5.1 rights because the applicant had given good cause for his recall. References to his relationship with another male whilst under the age of 18 had not affected the decision to recall, and he had not been discriminated against for his sexual orientation.
‘The court is not persuaded by the Government’s argument which appears to be based on the speculative assumption that whatever might have occurred at an oral hearing the Board would not have exercised its power to release. Article 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention – an applicant is not required, as a precondition to enjoying that protection, to show that on the facts of his case he stands any particular chance of success of obtaining his release. In matters of such crucial importance as deprivation of liberty and where questions arise involving, for example, an assessment of the applicant’s character or mental state, the Court’s case-law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. In such a case as the present, where characteristics pertaining to the applicant’s personality and level of maturity and reliability are of importance in deciding on his dangerousness, Article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses . . ‘

(2002) 36 EHRR 1001, Times 31-Dec-2002, 53236/99, [2002] ECHR 798, [2002] ECHR 804, [2003] Prison LR 160, (2003) 36 EHRR 54,
Worldlii, Bailii
Human Rights
Citing:
CitedWynne v United Kingdom ECHR 18-Jul-1994
A Discretionary lifer is not entitled to a review by a court of his continued detention. His article five rights were not breached. Where a national court imposed a fixed sentence of imprisonment, the supervision required by article 5.4 was . .
CitedWeeks v The United Kingdom ECHR 5-Oct-1988
The Court was asked as to the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non-binding recommendation. . .

Cited by:
CitedRoberts 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: . .
CitedHirst v Secretary of State for the Home Department CA 6-Jul-2006
The prisoner had been released on licence but then recalled. He complained that the procedure infringed his human rights. He had been convicted of manslaughter, and was seen to be a long term danger. The court awarded him compensation saying that . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedOsborn and Another v The Parole Board CA 15-Dec-2010
The three claimants complained that the respondent had made decisions adverse to them as to their release to or recall from parole.
Held: Review was refused. While there was ‘some force in the submission that, contrary to the understanding of . .
CitedOsborn v The Parole Board Admn 19-Mar-2010
The claimants complained that decisions had been made by the respondents without them having been first given a right to an oral hearing. They now sought permission to bring judicial review.
Held: Permission was refused. The facts in the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Criminal Sentencing

Leading Case

Updated: 01 November 2021; Ref: scu.178372

Engel And Others v The Netherlands (1): ECHR 8 Jun 1976

engel_netherlandsECHR1976

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

5101/71, 5354/72, 5102/71, 5370/72, [1976] ECHR 3, 5100/71, (1976) 1 EHRR 647
Worldlii, Bailii
European Convention on Human Rights 5(1) 14
Cited by:
CitedRegina v H (On appeal from the Court of Appeal (Criminal Division)) HL 30-Jan-2003
The defendant had been found unfit to stand trial, at a later hearing under the section, the jury had found that he had committed the act complained of. He was discharged but ordered to be placed on the sex offenders register. He appealed on the . .
CitedRegina (Mudie and Another) v Dover Magistrates’ Court and Another CA 4-Feb-2003
The applicants wished to challenge the confiscation of their goods by the Commissioners of Customs and Excise on their return to Dover. They appealed the refusal of Legal Aid.
Held: The Convention guaranteed the right to legal assistance for . .
CitedGillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
CitedCampbell and Fell v The United Kingdom ECHR 28-Jun-1984
Campbell and others had been involved in conduct within the prison leading to charges against them of mutiny and of striking an officer with a broom handle. The nature of the conduct in question was plainly susceptible of giving rise to criminal . .
CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
CitedRegina 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: . .
CitedRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
CitedClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
CitedTangney v The Governor of HMP Elmley and Another CA 29-Jul-2005
The claimant was a serving a life sentence. During prison disciplinary proceedings he was refused legal and other assistance, and an outside tribunal on the basis that since any finding would not lead to any loss of remission or extra time, his . .
CitedFrancis 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 . .
CitedMB, 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 . .
CitedGentle, 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 . .
CitedRJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
CitedAustin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
CitedSecretary of State for Defence v Smith, Regina (on the Application of) CA 18-May-2009
The soldier had died of heatstroke after exercises in Iraq. The Minister appealed against a finding that the circumstances of his death required an investigation compliant with Article 2 human rights, saying that he was not subject to such . .
See AlsoEngel And Others v The Netherlands (Article 50) ECHR 23-Nov-1976
ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient. . .
CitedSecretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
CitedSmith, 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.
CitedGale and Another v Serious Organised Crime Agency SC 26-Oct-2011
Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had . .
CitedKaplan 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 . .
CitedMubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Armed Forces

Leading Case

Updated: 01 November 2021; Ref: scu.164879

Regina v North Humberside and Scunthorpe Coroner ex parte Jamieson: CA 27 Apr 1994

The deceased prisoner had hanged himself. He had been a known suicide risk, and his brother said that the authorities being so aware, the death resulted from their lack of care. The inquest heard in full the circumstannces leading up to the death, but the Coroner directed the jury not to return a verdict which included any reference to lack of care.
Held: A finding of neglect is rarely consistent with a suicide, or one where the deceased contributed to his own death. It would be wrong to allow the jury to attribute blame.
Sir Thomas Bingham MR said: ‘Despite the rulings given by the appellate courts, problems continue to arise both for coroners seeking to conduct inquests and direct juries in accordance with the law as they understand it and for those interested in the death of a deceased person seeking to explore the full circumstances of the death and draw lessons which may prevent repetition. Coroners do their utmost to confine the proceedings before them within the bounds of what they consider to be proper. Interested parties not infrequently strain to pursue their quarry well beyond the boundaries set by the coroner.’ and ‘General Conclusions. An inquest is a fact finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbid any expression of opinion on any other matter.
Both in section 11(5)(b)(ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, ‘how’ is to be understood as meaning ‘by what means.’ It is noteworthy that the task is not to ascertain how the deceased died, which might reach general and far-reaching issues, but ‘how the deceased came by his death,’ a more limited question directed to the means by which the deceased came by his death. It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled.’
‘It is not the function of a coroner or his jury to determine or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame . . the prohibition on returning a verdict so as to appear to determine any question of civil liability is unqualified, applying whether anyone is named or not. Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression ‘lack of care’ may for practical purposes be deleted from the lexicon of inquests and replaced by ‘neglect’. Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show he obviously needs it may amount to neglect . . Neglect can rarely, if ever, be an appropriate verdict on its own . . Neglect may contribute to a death from natural causes. Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death.’

Sir Thomas Bingham MR
Times 28-Apr-1994, Independent 27-Apr-1994, [1995] QB 1, [1994] 3 All ER 972, [1994] 3 WLR 82, (1994) 158 JP 1011;, (1994) 19 BMLR 35
Coroners Act 1988 11(5)(b)(ii), Coroners Rules 1984 36(1) 40
England and Wales
Citing:
Appeal fromRegina v North Humberside and Scunthorpe Coroner ex parte Jamieson QBD 12-Jul-1993
northhumberside_jamiesonCA1993
A prisoner had hanged himself after being left unsupervised in a single cell. He was a known suicide risk, but the Coroner directed the jury not to return a verdict which included any reference to lack of care.
Held: A coroner was free not to . .
CitedRegina v Coroner for Surrey, ex parte Wright 18-Jun-1966
The deceased died when unconscious under general anaesthetic in the course of dental surgery, as a result of an obstruction to his airway.
Held: There was no basis in such circumstances for contending that the verdict of accident should have . .

Cited by:
CitedRegina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
CitedKhan, Regina (on the Application of) v HM Coroner for West Hertfordshire and Another Admn 7-Mar-2002
The deceased died in police custody. The coroner refused to leave to the jury possible verdicts of unlawful killing, or death contributed to by neglect, or breach of his right to life. He adjourned the hearing to allow this challenge.
Held: . .
CitedRegina on the Application of Mullholland v HM Coroner for St Pancras QBD 7-Nov-2003
The applicant sought to re-open a coroner’s inquest. The deceased had been drunk, slipped banged his head and fallen to the ground. Police and ambulance were called. The ambulance worker was not told he had been unconscious, and he was taken to the . .
CitedIn the Matter of Captain Christopher John Kelly Admn 14-Jun-1996
The deceased was killed by ‘friendly fire’ during a night exercise in Kenya. A verdict of accidental death was returned, and a fresh inquest was sought particularly in the light of a statement from a fellow officer.
Held: The emergence of . .
CitedSacker, Regina (on the Application of) v Coroner for the County of West Yorkshire HL 11-Mar-2004
The deceased committed suicide in prison. Her family sought to have added to the verdict the words ‘contributed by neglect’ and complained that the inquest had not provided a full and proper investigation of the death.
Held: The Act needed to . .
CitedIn Re Neal (Coroner: Jury) QBD 17-Nov-1995
The father of the deceased sought to have the coroner quash the inquest. His daughter had died in Spain from carbon monoxide poisoning, apparently emanated from a faulty water heater in the apartment in which she had stayed. Her body had been . .
CitedIn re Catherine Lucy Clegg (an Application to Quash Inquisition on Inquest) Admn 2-Dec-1996
The father of the deceased sought an order quashing the inquest on her death. He had recorded a verdict of suicide. She had died from acute salicylate poisoning, an aspirin overdose. The hospital was said not to have recognised her condition and not . .
CitedBloom v HM Assistant Deputy Coroner for the Northern District of London and Another Admn 20-Dec-2004
The deceased had gone to hospital and was diagnosed as having a kidney stone. As it was removed there was evidence of infection. She declined and was transferred to the local NHS hospital in intensive care. She died and a post-mortem identified . .
CitedLM, Re (Reporting Restrictions; Coroner’s Inquest) FD 1-Aug-2007
A child had died. In earlier civil proceedings, the court had laid responsibility with the mother. Restrictions had been placed on the information which would effectively prevent the coroner conducting his inquest. The coroner sought a lifting of . .
CitedO’Connor, Regina (On the Application of) v HM Coroner for District of Avon and Another Admn 7-May-2009
Two children died when their father jumped with them from a hotel balcony. The father had been acquitted in Crete of manslaughter after evidence of his psychiatric condition. The applicant now challenged the English coroner’s verdict of unlawful . .
CitedP, Regina (on The Application of) v HM Coroner for The District of Avon CA 18-Dec-2009
The deceased was found hanging in her prison cell. The jury returned a verdict of accidental death, not being satisfied that she was not merely making a cry for help. The family appealed a finding that the inquest had satisfied the requirement for a . .
CitedJones v HM Coroner for The Southern District of Greater London and Another Admn 28-Apr-2010
The mother of the deceased asked for a new inquest, saying that there had been insufficient enquiry. He was an adult suffering Asperger’s syndrome and other difficulties, but had sought and been given excess prescriptions of fentanyl a drug to . .
CitedSmith, 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.
CitedWilkinson, Regina (on The Application of) v HM Coroner for The Greater Manchester South District Admn 11-Oct-2012
The court was asked whether evidence of the commission of the criminal offence of causing death by careless driving contrary to section 2B of the 1988 Act is capable of justifying a verdict of ‘unlawful killing’ at an inquest.
Held: The . .
CitedKent County Council, Regina (on The Application of) v HM Coroner for The County of Kent (North-West District) and Others Admn 15-Oct-2012
The council sought review of the coroner’s decision that the inquest would be an article 2 inquest and with a jury. The deceased was 14 years old and had taken methadone. In the months before his death, he had had involvement with the council’s . .
CitedSreedharan, Regina (on The Application of) v HM Coroner for The County of Greater Manchester Admn 28-May-2012
The claimant doctor renewed his application for judicial review of the jury verdict of unlawful killing at the inquest into a patient. The patientwas alcoholic. The doctor prescribed a sedative drug for him, but it was known to be potentially lethal . .
CitedTyrrell 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.

Coroners, Health Professions, Prisons

Leading Case

Updated: 01 November 2021; Ref: scu.87444

Brown v The Parole Board for Scotland, The Scottish Ministers and Another: SC 1 Nov 2017

The court was asked whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applied to prisoners serving extended sentences. The prisoner was subject to an extended sentence, but had been released on licence and, after a breach, recalled. Having served the full original sentence, he now complained that the failure to provide rehabilitation courses in prison denied him any possibility of release.
Held: The appeal failed. There had been no article 5(1)(a) violation.
The UK courts had hitherto (in (Kaiyam) imposed a higher standard than that required by the ECtHR, which found that article 5(1)(a) does not require a real opportunity for rehabilitation during the tariff period, since this represents the punishment part of the sentence. It was right that the standards should be re-aligned, and cease to treat the obligation to provide opportunities for rehabilitation as an ancillary obligation implicit in article 5 as a whole.
The instant case concerned a prisoner serving an extended sentence. Similar standards should be applied, and have regard to the indefinite, not unlimited, detention during the extension, the purpose of protecting the public from serious harm, and the possibility of change in response to opportunities for rehabilitation. The rationale in James that rehabilitation opportunities had to be available to IPP prisoners where they were detained solely because of the risk they pose to the public, applies to prisoners detained during the extension period of an extended sentence.
In the instant case, the prisoner had been given real opportunities for rehabilitation during both parts of his sentence. The failings had arisen from his own misconduct.

Baroness Hale of Richmond PSC, Lord Reed, Lord Hodge JJSC, Lord Neuberger of Abbotsbury, Lord Carloway
[2017] UKSC 69, [2017] HRLR 16, 2018 SC (UKSC) 49, [2017] 3 WLR 1373, 2018 SCLR 76, [2018] 1 All ER 909, 2017 SLT 1207, [2018] AC 1, 2017 SCCR 540, [2017] WLR(D) 732, 2017 GWD 35-550, UKSC 2016/0079
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2017 06 14 am Video, SC 20117 06 14 pm Video, SC 20 06 15 am Video
European Convention on Human Rights 5, Human Rights Act 1998, Criminal Procedure (Scotland) Act 1995 210A
Scotland
Citing:
Appeal fromIn Reclaiming Motion By Brown v The Parole Board for Scotland and The Scottish Ministers SCS 31-Jul-2015
(Extra Division Inner House) The scope of this appeal relates to the impact of article 5 of the European Convention on Human Rights (‘ECHR’) in circumstances where the petitioner and reclaimer (‘the reclaimer’) is serving an extended sentence under . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
CitedAshingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
CitedBouamar v Belgium ECHR 29-Feb-1988
Hudoc Violation of Art. 5-1; Violation of Art. 5-4; Just satisfaction reserved; Judgment (Just satisfaction) Struck out of the list (friendly settlement)
A person detained as a juvenile in need of . .
CitedBrand v The Netherlands ECHR 11-May-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1 ; Non-pecuniary damage – financial award
The court set out a list of cases in which a person can be deprived of liberty without . .
CitedSaadi v United Kingdom ECHR 29-Jan-2008
(Grand Chamber) The applicant sought judicial review of the decision to detain him for a short period while his asylum claim was being subject to fast-track processing. The decision was made pursuant to a policy under which all asylum claimants . .
CitedKaiyam, Regina (on The Application of) v The Secretary of State for Justice CA 9-Dec-2013
The court was asked as to claims arising from the continued detention of the appellants following the expiry of the ‘minimum terms’ or ‘tariff periods’ of their indeterminate terms of imprisonment. The appellant prisoners said that the respondent’s . .
CitedKaiyam, Regina (on The Application of) v Secretary of State for Justice Admn 21-May-2013
The claimant, serving a sentence of imprisonment for public protection, challenged the failure by the respondent to provide him with access to the rehabilitative work which would allow him to seek early release.
Held: The claim failed. . .
CitedSecretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
CitedJames, Wells and Lee v The United Kingdom ECHR 18-Sep-2012
ECHR Article 5-1
Deprivation of liberty
Failure to provide the rehabilitative courses to prisoners which were necessary for their release: violation
Facts – By virtue of section 225 of the . .

Cited by:
CitedStott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
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.

Human Rights, Prisons

Updated: 01 November 2021; Ref: scu.598452

Dennehy, Regina (on The Application of) v Secretary of State for Justice: Admn 26 May 2016

The claimant, one of only two women serving whole life sentences, complained that she had been held for long periods of time under segregation conditions, and that that had not properly been authorised.
Held: Save for granting a declaration that the conditions had been unlawful for a particular period, the claims failed: ”It is important to recall that everyone within the jurisdiction is entitled to the protection of the law, including the protection of their human rights. That includes even someone who has committed the most serious crimes. This is because ours is a society governed by the rule of law.
I have considered carefully the submissions that have been made in this case. For the reasons set out in this judgment I have come to the following conclusions:
(1) As is conceded by both Defendants, the Claimant’s segregation was unlawful in the period from 21 September 2013 to 4 September 2015 because it was not in accordance with the requirements of rule 45 of the Prison Rules as they were at that time.
(2) There has been no breach of the duty to act fairly in this case. The Claimant’s segregation is not unlawful on that ground.
(3) There has been no breach of Article 3 of the Convention rights in this case. The Claimant has not been subjected to inhuman or degrading treatment.
(4) The Claimant’s segregation was not in accordance with law and, for that reason but no other, there was a breach of Article 8 in the period from 21 September 2013 to 4 September 2015. However, the Claimant’s segregation has been in accordance with law since that time and has, at all material times, been necessary and proportionate.
(5) There has been no breach of the right to equal treatment in the enjoyment of Convention rights in Article 14.
(6) The Claimant’s segregation has, at all material times, been reasonable and therefore lawful at common law.’

Singh J
[2016] EWHC 1219 (Admin), CO/4332/2015
Bailii, Judiciary Summary, Judiciary
Prison Rules 1999 45, European Convention on Human Rights 8 14
England and Wales

Prisons, Human Rights, Torts – Other

Updated: 01 November 2021; Ref: scu.564803

Ramirez Sanchez v France: ECHR 4 Jul 2006

ramirez_sanchezECHR2006

(Grand Chamber) The applicant, better known as ‘Carlos the Jackal’, complained that he had been held in solitary confinement for 8 years by the respondent whilst in prison contrary to article 3, and that he had not been given any means of challening this confinement contrary to Article 13.
Held: Despite the court’s concerns about the possible long-term effects of the applicant’s isolation, it nevertheless considered that, ‘having regard to the physical conditions of the applicant’s detention, the fact that his isolation is ‘relative’, the authorities’ willingness to hold him under the ordinary regime, his character and the danger he poses, the conditions in which the applicant was being held during the period under consideration have not reached the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention.’

L Wildhaber P
[2006] ECHR 685, 59450/00, [2007] Prison LR 169, (2007) 45 EHRR 49
Worldlii, Bailii
European Convention on Human Rights 3
Citing:
Appeal fromRamirez Sanchez v France ECHR 27-Jan-2005
The applicant complained that he had been held in solitary confinement for a period of nearly 8 years whilst in prison, and had not been given a remedy.
Held: There had been no breach of article 3 by the confinement, but article 13 had been . .

Cited by:
Grand ChamberRamirez Sanchez v France ECHR 2-Dec-2010
(Execution of Judgment) Record of satisfaction of judgment against it by the respondent. . .
CitedKing, 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 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Leading Case

Updated: 01 November 2021; Ref: scu.468879

Olutu v Home Office: CA 29 Nov 1996

The claimant said that she had been detained in excess of the period allowed under the 1987 Regulations, and that that detention was unlawful. She now appealed against the striking out of her claim.
Held: Her action failed. The availablility of a remedy by way of judicial review for a breach of statutory duty is a strong indicator that a private law action for damages will not lie for the breach.
The Human Rights Convention could not be applied here: ‘there was in this case no ambiguity, no obscurity and no absurdity in the statutory provisions, and there was accordingly no ground upon which recourse could be had to the Convention.’
As to the claim against the CPS: ‘There is nothing in the l985 Act or in the 1987 Regulations to suggest that either Parliament or the Secretary of State foresaw the present, very unhappy, conjunction of events: failure to arraign the plaintiff before expiry of 112 days; failure by the CPS to perform its duty under Regulation 6; and failure by the plaintiff to seek release. It cannot in my opinion have been intended to confer a private law right of action for damages in such circumstances.’
Lord Bingham said: ‘The plaintiff was in the custody of the Crown Court. Only by order of the court could that period of custody be brought to an end. Once the custody time limit had expired without extension, the Crown Court would have been obliged to order the release of the plaintiff, but such release would have been on bail and the Crown Court could have imposed terms with which the plaintiff would have been obliged to comply after release. Once the custody time limit had expired, the plaintiff was in my view unlawfully detained, and an order which would have led to her release could have been obtained either from the Crown Court or from the Divisional Court; but it does not follow that in the absence of any such order the Governor was guilty of falsely imprisoning the plaintiff and in my view he was neither entitled nor bound to release her.’

Lord Bingham of Cornhill LCJ, Auld, Mummery LJJ
[1997] 1 WLR 328, [1996] EWCA Civ 1070, [1997] 1 All ER 385
Bailii
Prosecution of Offences (Custody Time Limits) Regulations 1987, Magistrates’ Courts Act 1980 63, Prosecution of Offences Act 1985 22, European Convention on Human Rights 5
England and Wales
Citing:
CitedRegina v Maidstone Crown Court Ex Parte Clark QBD 19-Dec-1994
The judge was wrong to insist on the defendant entering a ‘holding plea’ at an arraignment where this was intended only to circumvent the custody time limits.
Glidewell LJ set out the applicable legislation and summarised its effect: ‘Put . .
CitedRegina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office HL 24-Jul-1991
The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to . .
CitedX (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
CitedElguzouli-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 by:
CitedCullen v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) HL 10-Jul-2003
The claimant had been arrested. He had been refused access to a solicitor whilst detaiined, but, in breach of statutory duty, he had not been given reasons as to why access was denied. He sought damages for that failure.
Held: If damages were . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Administrative, Prisons, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.184496

Bright and Another v The Secretary of State for Justice: CA 16 Dec 2014

Prison’s discretion to separate Civil Partners

The claimants were in each case, prisoners in the same prison. After they had annpunced an intention to become civil partners, they were moved so as to be separated. They compained that this infringed their Article 8 rights.
Held: The compaint failed. Such a separation was at the discretion of the prison governor. Thought there was no existing policy to cover such situations, the decision was not made in a vacuum and without constraint. It had to stay wihin the statutory purpose given. The authorities must not discriminate against prisoners in exercising the discretion, and retained a duty not to act unreasonably in the Wednesbury sense.
The first claimant’s partner had in fact been moved for his own safety and not because of his relationship with the claimant. In the other case the separation followed behaviour of the claimant and his partner which was sen to be indecent, insulting and offensive, contrary to the prison policy.
Lord Dyson MR noted that the Strasbourg jurisprudence adopts ‘a realistic and pragmatic approach’ and acknowledges that there are some contexts in which it is impracticable to define with precision how a discretionary power will or may be exercised.

Lord Dyson MR, McFarlane, Fulford LJJ
[2014] EWCA Civ 1628, [2015] 1 WLR 723, [2014] WLR(D) 549
Bailii, WLRD
European Convention on Human Rights 8
England and Wales

Prisons, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.539979

Velyo Velev v Bulgaria (Legal Summary): ECHR 27 May 2014

ECHR Article 2 of Protocol No. 1
Right to education
Refusal to enrol remand prisoner in prison school: violation
Facts – In 2005 the applicant, a remand prisoner, requested to be enrolled in the prison school. His request was refused first by the prison authorities and ultimately by the Supreme Administrative Court. The Prison Governor reasoned that, if convicted, the applicant, who had a previous conviction, would be a recidivist and should thus be kept separately from the non-recidivist prisoners. The Supreme Administrative Court rejected his request on different grounds, holding that the right to education applied only to convicted prisoners, not remand prisoners.
Law – Article 2 of Protocol No. 1: The Court recalled that lawfully detained prisoners continued to enjoy all fundamental rights and freedoms guaranteed under the Convention, save for the right to liberty. Consequently, the applicant still had the right to education under Article 2 of Protocol No. 1. The right to education imposed a duty on Bulgaria to afford effective access to existing educational establishments, including prison schools. Consequently, the Government had the burden of showing that its exclusion of the applicant was foreseeable, pursued a legitimate aim and was proportionate to that aim.
The Court found it open to doubt whether the exclusion was sufficiently foreseeable, as the relevant legislative framework provided that convicted prisoners had the right to be included in educational programmes and that provisions regarding convicted prisoners were equally applicable to remand prisoners. The lack of clarity in the statutory framework was reflected in the fact that the reasons given by the national authorities for his exclusion were different: the Prison Governor and the Ministry of Justice emphasised the applicant’s potential recidivism, while the Supreme Administrative Court focused on the applicant’s remand status.
The Government had relied on three different grounds to justify the applicant’s exclusion from the school. As to their first argument that it was inappropriate for the applicant to attend school with convicted prisoners, the Court observed that the the applicant did not have any objections and there was no evidence to show that remand prisoners would be harmed by attending school with convicted prisoners. Moreover, the Court did not consider the uncertainty of the length of the pre-trial detention to be a valid justification for exclusion from educational facilities. Finally, as regards the Government’s third argument that the applicant risked being sentenced as a recidivist, so it would not be in the interests of the non-recidivist prisoners to attend school with him, the Court recalled that the applicant was entitled to the presumption of innocence and thus could not be classified as a recidivist. In the light of these considerations, and recognising the applicant’s undoubted interest in completing his secondary education, the Court found that the refusal to enrol him in prison school had not been sufficiently foreseeable, had not pursued a legitimate aim or was proportionate to that aim.
Conclusion: violation (unanimously).
Article 41: EUR 2,000 in respect of non-pecuniary damage.

16032/07 – Legal Summary, [2014] ECHR 711
Bailii
European Convention on Human Rights
Human Rights
Cited by:
CitedVelyo Velev v Bulgaria ECHR 27-May-2014
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Education, Prisons

Updated: 01 November 2021; Ref: scu.533847

Torreggiani And Others v Italy: ECHR 8 Jan 2013

ECHR General measures
Respondent State required to provide effective remedies in respect of prison overcrowding
Facts – The seven applicants were detained in Busto Arsizio and Piacenza prisons. Over periods ranging from fourteen to fifty-four months, they had 3 sq. m of personal space each in prison.
Law – Article 3: The severe shortage of space to which the seven applicants had been subjected for periods ranging from fourteen to fifty-four months, which in itself constituted treatment contrary to the Convention, appeared to have been exacerbated by other conditions. The lack of hot water in both establishments over lengthy periods and the inadequate lighting and ventilation in the Piacenza prison cells, while not in themselves amounting to inhuman and degrading treatment, had nevertheless caused the applicants additional suffering. Taking into account also the duration of the applicants’ imprisonment, their conditions of detention had subjected them to hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.
Conclusion: violation (unanimously).
Article 46: The violation of the applicants’ right to adequate conditions of detention did not stem from isolated incidents but from a systemic problem arising out of a chronic dysfunction of the Italian prison system which had affected and remained liable to affect a large number of persons. The situation complained of therefore amounted to a practice incompatible with the Convention. Furthermore, several hundred applications against Italy were currently pending before the Court raising the same issue of overcrowding in various Italian prisons, and the numbers continued to rise. In addition, approximately 40% of the persons held in Italian prisons were remand prisoners awaiting trial. The Court pointed in that context to the Recommendations of the Committee of Ministers of the Council of Europe inviting States to encourage prosecutors and judges to make use of alternative measures to detention wherever possible, and to devise their penal policies with a view to reducing recourse to imprisonment, in order, among other objectives, to tackle the problem of the growth in the prison population. Lastly, the only remedy indicated by the respondent Government in the present cases which was capable of improving the conditions of detention complained of, namely an application to the judge responsible for the execution of sentences, was one which, although accessible, was not effective in practice in so far as it did not afford the possibility of putting a rapid end to an individual’s detention in breach of Article 3. Moreover, recent court rulings giving the judge responsible for the execution of sentences the power to order the administrative authorities to pay financial compensation by no means amounted to settled and consistent practice on the part of the national authorities. Consequently, the national authorities had to put in place, within one year, a remedy or combination of remedies with preventive and compensatory effect affording real and effective redress in respect of Convention violations stemming from overcrowding in Italian prisons.
Article 41: sums ranging between EUR 10,600 and EUR 23,500 to each applicant in respect of non-pecuniary damage.

43517/09 – Legal Summary, [2013] ECHR 293
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Prisons

Leading Case

Updated: 31 October 2021; Ref: scu.472446

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

There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were restrictive.
Held: ‘it is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage.’ Restrictions were however justifiable so long as the law was sufficiently precise to enable the individual to regulate his conduct, and that orders and instructions could be properly taken into account. ‘ and ‘a law which confers a discretion must indicate the scope of that discretion.’ though ‘the Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity . . [T]he Court points out once more that ‘many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.’ As to the rule prohibiting ‘letters which discuss crime in general or the crime of others’: ‘The Commission considers that this restriction is also an obvious requirement of imprisonment and although it is not specified in the Prison Rules 1964, as amended, the Commission is of the opinion that it is a reasonable and foreseeable consequence of the Home Secretary’s power under rule 33(1) of the Prison Rules 1964 to impose restrictions on prisoners’ correspondence in the interests of good order, the prevention of crime or the interests of any persons. Prison security is, in the Commission’s opinion, an essential part of such interest. The prohibition on prisoners’ letters which discuss crime in general or the crime of others can, accordingly, be said to be ‘in accordance with the law’ within the meaning of Article 8(2). . . . On the justification issue, the Commission considers that a prohibition on prisoners’ letters which discuss crime in general or the crime of others is, in principle, an ordinary and reasonable requirement of imprisonment, ‘necessary in a democratic society . . for the prevention of disorder or crime’ within the meaning of Article 8(2).’
ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings.

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

Cited by:
CitedAnufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
CitedSzuluk, Regina (on the Application of) v HM Prison Full Sutton Admn 20-Feb-2004
The prisoner was receiving long term health treatment, and objected that his correspondence with the doctor was being read. He was held as a category B prisoner but in a prison also holding category A prisoners, whose mail would be read. The prison . .
CitedBegum, Regina (on the Application of) v Denbigh High School Admn 15-Jun-2004
A schoolgirl complained that she had been excluded from school for wearing a form of attire which accorded with her Muslim beliefs.
Held: The school had made great efforts to establish what forms of wear were acceptable within the moslem . .
CitedS, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
CitedNilsen v HM Prison Full Sutton and Another CA 17-Nov-2004
The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights. . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedHirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
See AlsoSilver And Others v The United Kingdom (Art 50) ECHR 24-Oct-1983
. .
CitedThe Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
CitedThe 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.

Human Rights, Damages, Prisons

Leading Case

Updated: 31 October 2021; Ref: scu.164917

Regina v Governor of Brixton Prison, Ex parte Walsh: HL 1984

Walsh faced two sets of charges. In one of which he was bailed and in the other he was remanded in custody. The Governor of the prison refused to produce him to the court for the purpose of facing the bailed proceedings.
Held: Habeas corpus may be applied for and granted on occasions such as when there is an excessive delay in bringing a prisoner up for trial.
Lord Fraser referred to Section 29 of the 1961 Act and added that: ‘so the effect of Section 29(1) of the Act of 1961, and of the circular, is that a Governor of a prison may direct a prisoner to be taken to a court if he is satisfied that his attendance at the court is desirable in the interests of justice.’
Lord Fraser
[1985] AC 154, [1984] 2 All ER 609, [1984] 3 WLR 205
Criminal Justice Act 1961 29
England and Wales
Cited by:
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2021; Ref: scu.591144

VC, Regina (on The Application of) v The Secretary of State for The Home Department: CA 2 Feb 2018

‘There are broadly two questions before the court in this appeal. The first concerns the application of the Secretary of State for the Home Department’s policy governing the detention under the Immigration Act 1971 (‘the 1971 Act’) of persons who have a mental illness, and the consequences if she is found not to have applied that policy correctly. The second concerns the adequacy at common law and under the Equality Act 2010 (‘the Equality Act’) of the procedures under which mentally ill detainees can make representations on matters relating to their detention.’
Arden, Lewison, Beatson LJJ
[2018] EWCA Civ 57
Bailii
Equality Act 2010
England and Wales
Cited by:
CitedRowley, Regina (on The Application of) v Minister for The Cabinet Office Admn 28-Jul-2021
Failure to Provide Signers was Discriminatory
The claimant challenged the failure of the respondent to provide sign language interpreters to accompany public service broadcasts during the Covid pandemic. . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.604162

Tainton, Regina (on The Application of) v HM Senior Coroner for Preston and West Lancashire and Another: Admn 16 Jun 2016

The deceased had been a serving prisoner. He died of cancer of the oesophagus. There was concern as to his medical care. The claimant challenged the conduct of the inquest by the coroner.
Sir Brian Leveson P QBD, Kerr J
[2016] EWHC 1396 (Admin)
Bailii
England and Wales

Updated: 14 July 2021; Ref: scu.565722

C v Secretary of State for Justice: Admn 2014

The claimant sought to challenge a refusal to him, as a long standing convicted murderer of unsupervised leave from prison as part of a path to release. He was detained in a secure mental hosptal. The court now considered whether the claimant and hospital should be anonymised.
Held: The Court rejected the application for anonymity, but ordered it to be retained pending an appeal.
Cranston J said: ‘previous proceedings about this claimant are publicly available and I cannot see the justification for anonymity: the public have a right to know what I have decided about his claim for judicial review: R (M) v Parole Board [2013] EWHC 1360 (Admin), [2013] EMLR 23, paras 47-49. However, Dr H has written requesting that the hospital’s identity and that of the staff be concealed, to protect both the claimant and the other patients from potential intrusion. That is a reasonable request and there be an order of anonymity to that extent.’
Cranston J
[2014] EWHC 167 (Admin)
England and Wales
Citing:
See AlsoM, Regina (on The Application of) v The Parole Board and Another Admn 22-May-2013
(Jan 2013) The court was asked whether an order for anonymity made in the course of proceedings for judicial review should be discharged upon the application of media and other interested parties. Various newspapers had applied for the order to be . .

Cited by:
CitedRegina (on the application of C) v Secretary of State for Justice SC 27-Jan-2016
The applicant was a convicted murderer who had been held in a high security mental hospital. His application for unescorted leave had been refused, and he wished to challenge the decisions. Anonymity in the subsequent proceedings had been refused to . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.606370

Regina v Secretary of State for the Home Department, ex parte Quinn: QBD 26 May 1999

A prisoner charged with a prison mutiny was moved to a prison, where one of the officers now worked. He feared reprisals, and that his trial would be unfair. The right to a fair trial is constitutional, but no real danger was shown here.
Gazette 26-May-1999
England and Wales

Updated: 01 June 2021; Ref: scu.87937

Tymoshenko v Ukraine: ECHR 30 Apr 2013

49872/11 – Chamber Judgment, [2013] ECHR 389
Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoTymoshenko v Ukraine ECHR 31-May-2012
. .
See AlsoTymoshenko v Ukraine ECHR 3-Jul-2012
. .
Legal SummaryTymoshenko v Ukraine (Legal Summary) ECHR 30-Apr-2013
ECHR Article 5-1
Lawful arrest or detention
Pre-trial detention for allegedly contemptuous behaviour to trial court: violation
Article 18
Restrictions for unauthorised purposes
Updated: 19 May 2021; Ref: scu.491929

Regina v Secretary of State for the Home Department and Another, ex parte Singh (Prem): QBD 27 Apr 1993

A prisoner who was detained ‘during HM pleasure’ is to be allowed to see all reports before the Parole Board considering his release save those for which Public Interest Immunity Certificate has been given.
Times 27-Apr-1993, Independent 11-Jun-1993
Criminal Justice Act 1967 4, Criminal Justice Act 1991 34
England and Wales

Updated: 16 May 2021; Ref: scu.87819

Black, Regina (on The Application of) v Secretary of State for Justice: SC 19 Dec 2017

The Court was asked whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006.
Held: However reluctantly, the claimant’s appeal was dismissed. Parliament must be assumed to have intended that the Crown be not bound by the 2006 Act. It would have required express provision. This is a question of statutory interpretation, and not of allowing an exemption.
The classic rule is that a statutory provision is not binding on the Crown without express words or ‘necessary implication’ Many statutes have been drafted and
passed on this basis. An amendment to this by the Court would have retrospective effect with substantial and unforeseeable consequences, though it might profitably be examined by the Law Commission. Other health and safety statutes made such express provision, and indeed other parts of the 2006 Act made such provision.
Lady Hale, President, Lord Mance, Deputy President, Lord Kerr, Lord Hughes, Lord Lloyd-Jones
[2017] UKSC 81, (2018) 160 BMLR 1, [2018] 2 WLR 123, [2018] 2 All ER 212, [2018] AC 215, UKSC 2016/0070
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 31 Oct 2017 am Video, SC 31 Oct 2017 pm Video, SC 1 Nov 2017 am Video
Health Act 2006
England and Wales
Citing:
CitedThe Province of Bombay v The Municipal Corporation of The City of Bombay and Another PC 10-Oct-1946
(Bombay) The Board considered whether the Crown was bound by section 222(1) and section 265 of the City of Bombay Municipal Act 1888, which in effect gave the Municipality power to carry water mains for the purposes of water supply through, across . .
CitedRevenue and Customs, Regina (on The Application of) v HM Coroner for The City of Liverpool Admn 21-May-2014
The Coroner, conducting an investigation into a person’s death, issued notices under para 1(2) of Schedule 5 to the Coroners and Justice Act 2009, requiring the Revenue and Customs Commissioners to provide occupational information concerning the . .
CitedThe British Broadcasting Corporation v Johns (HM Inspector of Taxes) CA 5-Mar-1964
The BBC claimed to be exempt from income tax. It claimed crown immunity as an emanation of the crown. The court had to decide whether the BBC was subject to judicial review.
Held: It is not a statutory creature; it does not exercise statutory . .
At AdmnBlack, Regina (on The Application of) v Secretary of State for Justice Admn 5-Mar-2015
The serving prisoner said that new general restrictions on smoking in public buildings applied also in prisons. were a breach of his human rights. The only spaces where prisoners were allowed now to smoke were their cells, and he would share cells . .
Appeal fromSecretary of State for Justice v Black CA 8-Mar-2016
The Secretary of State appealed against a declaration that the provisions prohibiting smoking in pubic places applied in prisons.
Held: The appeal succeeded. . .
CitedGorton Local Board v Prison Comrs (Note) 1887
The Prison Commissioners were not bound by local by-laws made under the Public Health Act 1875, requiring the local authority to certify that newly built houses were fit for human habitation. . .
CitedCooper v Hawkins 1904
Vehicles driven by Crown servants on Crown business were not subject to the speed limits laid down by the local authority under the Locomotives Act 1865. . .
CitedLord Advocate v Dumbarton District Council HL 1989
The House was asked whether the Ministry of Defence was entitled to cone off a section of the A814 road without the permission of the roads authority under the Roads (Scotland) Act 1984 or the local planning authority under the Town and Country . .
CitedAttorney General v Hancock 1940
The Crown could enforce a debt for unpaid income tax without the leave of the court, not being bound by the provisions of the Courts (Emergency Powers) Act 1939, which prohibited enforcement without leave. . .
CitedMadras Electric Supply Corp Ltd v Boarland House of Lords HL 11-Mar-1955
Income Tax, Schedule D – Balancing charge – Succession by Crown – Whether cessation provisions apply – Income Tax Act, 1918 (8 and 9 Geo. V, c. 40), Schedule D, Cases I and II, Rule 11 ; Finance Act, 1926 (16 and 17 Geo. V, c. 22), Section 32.
CitedMinistry of Agriculture, Fisheries and Food v Jenkins CA 1963
The Crown was not bound by the Town and Country Planning Act 1947 to get planning permission for the afforestation of its land, though its tenants are so bound.
Lord Denning MR said: ‘Looking at the whole of the Town and Country Planning Act, . .
CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
CitedN, Regina (on The Application of) v Secretary of State for Health CA 24-Jul-2009
A challenge was made to the ban on smoking at a secure hospital. . .
CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.601507

Dowsett, Regina (on The Application of) v Secretary of State for Justice: Admn 27 Mar 2013

The claimant prisoner objected to the defendant’s policies that male prisoners were not to be allowed to refuse ‘rub-down’ searches by female prison officers, save on religious or cultural grounds. He said that the exceptions were too tightly limited, and were discriminatory.
Silber J
[2013] EWHC 687 (Admin)
Bailii
Prison Act 1952 47(1), Prison Rules 1999 41

Updated: 01 May 2021; Ref: scu.472073

Razvyazkin v Russia: ECHR 3 Jul 2012

The Court discussed proportionality in respect of the solitary confinement of a prisoner under Article 8: ‘Given that solitary confinement is a serious restriction of a prisoner’s rights which involves inherent risks to the prisoner, the level of actual or potential harm must be at least equally serious and uniquely capable of being addressed by this means. This is reflected, for example, in most countries having solitary confinement as a sanction only for the most serious disciplinary offences, but the principle must be respected in all uses of the measure. The longer the measure is continued, the stronger must be the reason for it and the more must be done to ensure that it achieves its purpose.’
13579/09 (Judgment (Merits and Just Satisfaction)), [2012] ECHR 1364
Bailii
European Convention on Human Rights
Human Rights
Cited by:
CitedShahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .

These lists may be incomplete.
Updated: 14 April 2021; Ref: scu.462103

Tymoshenko v Ukraine: ECHR 31 May 2012

49872/11 (Communicated Case), [2012] ECHR 1160
Bailii
European Convention on Human Rights
Human Rights
Cited by:
See AlsoTymoshenko v Ukraine ECHR 3-Jul-2012
. .
See AlsoTymoshenko v Ukraine (Legal Summary) ECHR 30-Apr-2013
ECHR Article 5-1
Lawful arrest or detention
Pre-trial detention for allegedly contemptuous behaviour to trial court: violation
Article 18
Restrictions for unauthorised purposes
See AlsoTymoshenko v Ukraine ECHR 30-Apr-2013
. .

These lists may be incomplete.
Updated: 14 April 2021; Ref: scu.461995

FGP v Serco Plc and Another: Admn 5 Jul 2012

The claimant said that whilst he had been being taken from an immigration detention centre to hospital, he had been restrained by various forms of handcuffs. He said that had been unlawful.
Held: The claim failed: ‘ the recommendation that there should only be handcuffing in exceptional circumstances is to apply too high a test. Those making the risk assessment have to decide whether handcuffing is reasonably necessary and so proportionate having regard to all relevant circumstances, which will include the insecure nature of the hospital. The claimant had criminal convictions and the most recent for affray indicated that there had been violence or a threat of violence to others. In addition, he had a history which indicated that he was liable to react to pressure in a disruptive fashion and there was also the possibility of self harm. It was known that he was most anxious to avoid return to Algeria. One of the main reasons for his detention was concern that if not detained he would abscond.
In my judgment, what was known of the claimant justified the assessment that he should be restrained during the hospital visit. Having seen and heard the two witnesses who gave evidence, I am satisfied that they did consider in a proper fashion whether restraint was needed.’
Collins J
[2012] EWHC 1804 (Admin)
Bailii
Home Office Detention Services Order 1/2002, European Convention on Human Rights
England and Wales
Citing:
CitedFaizovas, Regina (on the Application of) v Secretary of State for Justice CA 13-May-2009
. .
CitedC, Regina (on the Application of) v Secretary of State for Justice CA 28-Jul-2008
The court was asked as to what methods of physical restraint were proper in institutions accommodating youths in custody.
Held: The Court had been wrong not to quash the amended rules on the grounds of procedural breaches. The amended rules . .

These lists may be incomplete.
Updated: 14 April 2021; Ref: scu.461953

Scoppola v Italy (No 3): ECHR 22 May 2012

(Grand Chamber) A prisoner serving a sentence of 30 years imprisonment for murder, attempted murder and other offences object to his disenfranchisement under Italian law.
126/05, [2012] ECHR 868
Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoScoppola v Italy (No 3) ECHR 18-Jan-2011
(referral to the grand chamber) . .

Cited by:
CitedChester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
CitedMoohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .

These lists may be incomplete.
Updated: 12 April 2021; Ref: scu.460181

Regina v Secretary of State for Home Department ex parte H and Others, Regina v Same ex parte Hickey: CA 29 Jul 1994

A discretionary life prisoner who had been transferred to a mental hospital is not automatically eligible for a certificate under the section. The right conferred on a discretionary life prisoner by section 34 of the 1991 Act did not extend to those who were also detained under the MHA by reason of transfer and restriction directions given by the Home Secretary under sections 47 and 49 respectively. ‘I [do not] see anything unjust or illogical in two separate codes existing which cannot be triggered simultaneously, but each of which at an appropriate time, depending on the circumstances, can be triggered so as to achieve a judicial hearing. ‘ The Home Secretary’s powers to refer a case back to the Court of Appeal (Criminal Division) was an integral part of the just functioning of the overall process of criminal justice.
Simon Brown LJ
Times 29-Jul-1994, [1995] QB 43, [1995] 1 WLR 734
Criminal Justice Act 1991 31 Sch 12 9(3), Mental Health Act 1983 47 49
England and Wales
Citing:
Appeal fromRegina v Secretary of State for the Home Department, ex parte Hickey and Others QBD 28-Oct-1993
Parole provisions are to apply to life prisoners who had been transferred transferred to a mental hospital. . .
CitedThynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .

Cited by:
ConfirmedRegina (D) v Secretary of State for the Home Department QBD 19-Dec-2002
The applicant had been a discretionary life prisoner. His minimum period of detention had passed, but he continued to be detained under a transfer order for his treatment as mental health patient.
Held: The absence of any means for him to . .
CitedP, Regina (on the Application of) v Secretary of State for the Home Department Admn 11-Dec-2003
The applicant was a discretionary life prisoner compulsorily detained in a mental hospital. His tariff had now expired. If not detained under the 1983 Act he would now be entitled to a review. He argued that there should be a joint hearing.
CitedRoberts 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: . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.87747

Bateman and Howse, Regina (on the Application Of) v Secretary of State for the Home Department: CA 17 May 1994

The plaintiff had been convicted of several counts of receiving stolen goods and sentenced to six years’ imprisonment. He had appealed to the Court of Appeal on the ground that he had been convicted on the basis of evidence in statement form given by witnesses from New Zealand. His appeal failed. Some time later his case was referred back to the Court of Appeal under section 17 of the Criminal Appeal Act 1968. This time his appeal succeeded on what was essentially the same ground as that which had failed before and his convictions were quashed.
Held: The plaintiffs’ appeals were dismissed. Compensation should be payable to prisoners wrongly convicted only after new facts were discovered, not where the release came after a ruling which changed the law. In this case ‘the ground of the reversal was not . . the discovery of a new or newly discovered fact, but a legal ruling on facts which had been known all along.’
Sir Thomas Bingham discussed the suggestion that the success of an appeal meant that the court felt there had been a miscarriage of justice, and said: ‘Therefore, it follows, he says, that he is a victim of a miscarriage of justice and from that it follows that he is entitled to compensation. To deny him compensation is, he argues, to undermine his acquittal and the presumption of innocence which flows from the fact that his convictions have been quashed. I am, for my part, unable to accept that argument, although I hasten to assure Mr Bateman that in doing so I have no intention whatever to undermine the effect of the quashing of his convictions. He is entitled to be treated, for all purposes, as if he had never been convicted. Nor do I wish to suggest that Mr Bateman is not the victim of what the man in the street would regard as a miscarriage of justice. He has been imprisoned for three-and-a-half years when he should not have been convicted or imprisoned at all on the second decision of the Court of Appeal (Criminal Division). The man in the street would regard that as a miscarriage of justice and so would I. But that is not, in my judgment, the question. The question is whether the miscarriage of justice from which Mr Bateman has suffered is one that has the characteristics which the Act lays down as a pre-condition of the statutory right to demand compensation. That, therefore, is the question to which I now turn.’ there was no new or newly discovered fact, so that Mr Bateman could not satisfy the relevant criteria under section 133.
Sir Thomas Bingham MR, Farquharson, Simon Brown LJJ
Times 01-Jul-1994, (1995) 7 Admin LR 175, [1994] EWCA Civ 36, [1994] COD 504
Bailii
Criminal Justice Act 1988 133
England and Wales
Citing:
Appeal fromRegina v Secretary of State for Home Department, ex parte Bateman – Regina v Same ex parte Howse QBD 5-May-1993
Compensation for a wrongful imprisonment should include circumstances of miscarriage of justice as well as pardons. A magistrate is not a public authority. The threshold of exceptionality is high: ‘It was essentially a question for the Secretary of . .

Cited by:
CitedIn re McFarland HL 29-Apr-2004
The claimant was convicted, imprisoned, and then his conviction was overturned. He sought compensation. He had pleaded guilty after being told by counsel to expect an adverse direction from the magistrate, following a meeting in private between . .
CitedAdams, 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. . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.86900

Regina v Sharkey: CACD 10 Nov 1999

Where an offender had been released from prison under licence, but committed a further offence whilst released on licence, and had already been recalled to prison by way of his licence being revoked under section 39, that did not prevent a court dealing with the offender also making an order under s40 for the remainder of the original term to be served consecutively if that was appropriate. The sole concern of the Parole Board is with risk, and it has no role at all in the imposition of punishment.
Times 10-Nov-1999, Gazette 10-Nov-1999, [2000] 1 Cr App R 409, [2000] 1 WLR 160
Criminal Justice Act 1991 39 40
England and Wales
Cited by:
CitedRegina v Stocker CACD 20-Jan-2003
Whilst released on licence from prison, the defendant committed further related offences. On sentencing the judge erred in calculating the amount of time to be served for the breach of the licence. Having been recalled, the time served between . .
CitedRegina 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: . .

These lists may be incomplete.
Updated: 08 April 2021; Ref: scu.85553

Abbott v The Attorney General of Trinidad and Tobago and Others: PC 12 Jun 1979

Trinidad and Tobago
[1979] UKPC 15
Bailii
Commonwealth
Citing:
See AlsoAbbott v The Queen PC 20-Jul-1976
The appellant was charged as a principal in the first degree, and the issue was whether the defence of duress was available. The Board considered the availability of duress as a defence to a criminal charge.
Held: The defence was not open to . .

These lists may be incomplete.
Updated: 15 March 2021; Ref: scu.443387

Greens and Others, Re Application for Judicial Review: SCS 12 May 2011

[2011] ScotCS CSOH – 79
Bailii
Scotland
Citing:
See AlsoGreens v The United Kingdom ECHR 23-Nov-2010
The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
See AlsoGreens v Her Majesty’s Advocate HCJ 12-Sep-2007
The defendant appealed against his sentence of seventeen years’ imprisonment for a violent rape. . .
See AlsoRobert W Greens v The United Kingdom ECHR 27-Aug-2009
. .

These lists may be incomplete.
Updated: 11 March 2021; Ref: scu.439690

Hirst v The United Kingdom: ECHR 3 Dec 2009

(Resolutions) The court noted the long delay in the respondent in implementing the judgment of the court and giving prisoners voting rights, the present consultation and adjourned until March 2011 for further information.
[2009] ECHR 2260, 4025/01
Bailii
Representation of the People Act 1983 3, European Convention on Human Rights 3
Citing:
At CommissionHirst v The United Kingdom (No. 2) ECHR 30-Mar-2004
(Commission) The prisoner alleged that the denial of his right to vote whilst in prison was disproportionate. He was serving a life sentence for manslaughter.
Held: The denial of a right to vote was in infringement of his rights and . .
Grand ChamberHirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .

These lists may be incomplete.
Updated: 05 March 2021; Ref: scu.430457

Howden, Regina (on The Application of) v The Chief Constable of South Yorkshire: Admn 15 Oct 2010

The claimant challenged a decision to return him to prison from release on licence. He said that in a non-urgent situation it was wrong for the Secretary of State to accept police intelligence without further enquiries.
Held: The claim failed. The test for misbehaviour short of the required standard is not a high one. Having information from a source deemed to be reliable, there was no obligation on the respondent to make further enquiries.
Langan QC J
[2010] EWHC 2521 (Admin)
Bailii
England and Wales
Citing:
CitedRegina (Gulliver) v Parole Board CA 4-Jul-2007
The claimant had been released on licence, and recalled. He complained that the parole board had, in considering his re-release taken into account circumstances beyond those which had directly caused his recall.
Held: The prisoner’s appeal . .
CitedMcDonagh, Regina (on The Application of) v Secretary of State for Justice Admn 20-Jan-2010
When deciding whether a prisoner released on licence should be returned to prison, the question ‘is whether the Secretary of State could reasonably have believed on the material available to him that the claimant had not conducted himself by . .

These lists may be incomplete.
Updated: 28 February 2021; Ref: scu.425305

Jones, Regina (on The Application of) v The Parole Board: Admn 8 Oct 2010

The claimant challenged the decision to refuse to him recategorisation to category D. He complained of the weight given to evidence from a particular witness who spoke as to his character, but had never met him.
Held: The claim failed. The board had acted with access to substantial reports which would justify the decision without the evidence complained of.
Langan QC J
[2010] EWHC 2462 (Admin)
Bailii
England and Wales

Updated: 28 February 2021; Ref: scu.424957

Regan v Chief Constable of The West Midlands Police Force: Admn 28 May 2010

The prisoner was to be released, but had been refused a home detention curfew. The respondent had informed the prison that his life would be at risk if he was released to return to the address intended.
The Recorder of Birmingham
[2010] EWHC 2297 (Admin)
Bailii
European Convention on Humajn Rights 2
England and Wales

Updated: 28 February 2021; Ref: scu.424076

McDonagh, Regina (on The Application of) v Secretary of State for Justice: Admn 20 Jan 2010

When deciding whether a prisoner released on licence should be returned to prison, the question ‘is whether the Secretary of State could reasonably have believed on the material available to him that the claimant had not conducted himself by reference to’ the standard of good behaviour.
Judge Pelling QC
[2010] EWHC 369 (Admin)
Bailii
England and Wales
Cited by:
CitedHowden, Regina (on The Application of) v The Chief Constable of South Yorkshire Admn 15-Oct-2010
The claimant challenged a decision to return him to prison from release on licence. He said that in a non-urgent situation it was wrong for the Secretary of State to accept police intelligence without further enquiries.
Held: The claim failed. . .

These lists may be incomplete.
Updated: 22 February 2021; Ref: scu.401977

Baldauf v Secretary of State for The Home Department: Admn 19 Jan 2010

The claimant challenged two aspects of the defendant’s decision to release him from custody on licence. First, it is said that the claimant should have been released on licence unconditionally and should not have been released on conditional licence. Secondly he challenge dth ecalaculation of th eremaining term of the licence.
Sullivan LJ, Lloyd Jones J
[2010] EWHC 151 (Admin)
Bailii
England and Wales

Updated: 22 February 2021; Ref: scu.396644

Griffiths v Secretary of State for Justice: Admn 19 Dec 2013

The claimants challenge what is said to be the continuing failure of the Secretary of State for Justice (‘the Secretary of State’) to make adequate provision for so called approved premises to accommodate women released from prison on licence. The claimants are women prisoners approaching the date on which they will be considered for release on licence. There are now only six women’s approved premises in England, none in London, and none in Wales. Thus the claimants are said to face a significant likelihood of being in approved premises many miles from their homes and families, with detrimental effects on their rehabilitation and reintegration into the community.
Cranston J did declare that the Secretary of State had failed to discharge the public sector equality duty: ‘What is required is that the Secretary of State address possible impacts, assessing whether there is a disadvantage, how significant it is, and what steps might be taken to mitigate it. In the context of advancing equality of opportunity – one aspect of the duty – that means taking the opportunity to see whether more might be done for women, having regard to their particular circumstances. Nothing even approaching this has been done.’
Cranston J
[2013] EWHC 4077 (Admin), [2014] WLR(D) 136
Bailii, WLRD
England and Wales
Cited by:
Appeal fromColl v Secretary of State for Justice CA 31-Mar-2015
The appellant was serving a mandatory life sentence for murder. She was being considered for release from custody to ‘Approved Premises’. There were however more such centres for men and the provision for women was unplanned. The results, she said . .
At First InstanceColl, Regina (on The Application of) v Secretary of State for Justice SC 24-May-2017
The appellant female prisoner asserted that the much smaller number of probation and bail hostels provided for women prisoners when released on licence was discriminatory in leaving greater numbers of women far removed from their families.
Updated: 20 February 2021; Ref: scu.519336

JL, Regina (On the Application of) v Secretary Of State for Justice: Admn 7 Oct 2009

Laws LJ
[2009] EWHC 2416 (Admin)
Bailii
England and Wales
Citing:
CitedLawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .

Cited by:
MentionedMousa, Regina (on The Application of) v Secretary of State for Defence and Another CA 22-Nov-2011
mousa_ssdCA2011
The claimant sought a public inquiry into allegations of systematic ill treatment by UK soldiers in Iraq. He now appealed against refusal of an inquiry, the court having found it permissible for the Secretary of Styate to await the outcome of . .

These lists may be incomplete.
Updated: 19 February 2021; Ref: scu.376141

Matthews, Regina (On the Application of) v HMP Swaleside: Admn 5 Oct 2009

The Claimant sought judicial review of the Defendant’s decision to refuse to allow the Claimant to submit a Tutor Marked Assessment (TMA) to the Open University
William Davis QC HHJ
[2009] EWHC 2397 (Admin)
Bailii
European Convention on Human Rights 10
England and Wales

Updated: 19 February 2021; Ref: scu.376016

Edward Szuluk v United Kingdom: ECHR 3 Jun 2009

The prisoner complained that the prison had monitored his conversations and communications with his doctor.
Held: The actions were a violation of the prisoner’s article 8 rights.
L Garlicki, P and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, P. Hirvela, L. Bianku and N. Vucinic, Deputy Section Registrar F. Araci
[2009] ECHR 845, Times 17-Jun-2009
Bailii
European Convention on Human Rights 8
Human Rights
Citing:
See AlsoEdward Szuluk v United Kingdom ECHR 22-Feb-2008
. .
At administrative courtSzuluk, Regina (on the Application of) v HM Prison Full Sutton Admn 20-Feb-2004
The prisoner was receiving long term health treatment, and objected that his correspondence with the doctor was being read. He was held as a category B prisoner but in a prison also holding category A prisoners, whose mail would be read. The prison . .
At Court of AppealRegina on the Application of Szuluk v The Governor of HMP Full Sutton and the Secretary of State for the Home Department CA 29-Oct-2004
Right of prison to read correspondence with doctor . .

These lists may be incomplete.
Updated: 19 February 2021; Ref: scu.374724

McCann v The State Hospitals Board for Scotland: SC 11 Apr 2017

A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking indoors, but rather as to the ban on smoking in the grounds and on home visits, which, by creating a comprehensive ban, prevented detained patients from smoking anywhere.
Held: The appeal was allowed in part. The respondent had not considered the principle that their actions should represent the minimum interference with a restrained person’s freedoms necessary to achieve the intended purpose. The absolute prohibition on having tobacco products and the related powers to search and confiscate were illegal and were nullified.
‘The Board did not purport to act under the 2003 Act in instituting the policy of prohibiting the possession of tobacco products, searching for such products and confiscating them. It may be the case that the consultation exercises which the Board carried out during 2011 were sufficient to comply with the obligations in section 1(2) and (3) of the 2003 Act. But there appears to have been no consideration of the obligation under section 1(4) nor compliance with the obligations to inform and record in the 2005 Regulations. This is not surprising as the Board considered that it was acting under the 1978 Act.’
Lady Hale, Deputy President, Lord Mance, Lord Wilson, Lord Reed, Lord Hodge
[2017] UKSC 31, [2017] 1 WLR 1455, 2017 GWD 12-169, 2017 SLT 451, [2017] 4 All ER 449, (2017) 156 BMLR 35, [2017] WLR(D) 268, UKSC 2015/0135
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video
Mental Health (Care and Treatment) (Scotland) Act 2003, European Convention on Human Rights 8
Scotland
Citing:
Outer HouseCM, Re Judicial Review SCS 27-Aug-2013
(Outer House) The prisoner, held in a high security psychiatric hospital, challenged the outright ban on smoking.
Held: The Lord Ordinary declared that the impugned decision was unlawful so far as it affected Mr McCann both because it was not . .
Extra Div Inner HouseSN v Secretary of State for The Home Department SCS 14-Jan-2014
Extra Division, Inner House – . .
Appeal FromReclaiming Motion Charles McCann v The State Hospital Board for Scotland SCS 12-Aug-2014
Inner House – The house considered a reclaiming motion (appeal) as to the lawfulness of a decision by the respondents to prohibit smoking and the possession of tobacco in the buildings and grounds of the State Hospital, Carstairs. The Board . .
CitedLyons, Re Judicial Review SCS 2-Feb-2011
The petitioner was a detained patient, subject to both a compulsion and restriction orders. He objected to a policy restricting visitors from bringing food parcels, and restricting ordering food from outside.
Held: Lady Dorrian held that the . .
CitedG, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
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 . .
CitedMunjaz v The United Kingdom ECHR 17-Jul-2012
The applicant was detained in a secure mental hospital. He complained that he had been held in seclusion.
Held: The complaints under articles 5 and 8 were admissible, but there had been no violation of the applicant’s rights in these . .
CitedBruggeman and Scheuten v Federal Republic of Germany ECHR 12-Jul-1977
(Commission) The applicants complained at restrictions on the termination of unwanted pregnancies.
Held: Article 8(1) secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. He . .
CitedMarckx 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. . .
CitedNiemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
CitedCountryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
CitedPretty v The United Kingdom ECHR 29-Apr-2002
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 . .
CitedLondon 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 . .
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
CitedRegina v Broadmoor Hospital Authority, Ex p S CA 1998
Routine and random searches may be an incident of therapeutic detention and treatment. . .
CitedHirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
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 . .

These lists may be incomplete.
Updated: 18 February 2021; Ref: scu.581645

Hirst v The United Kingdom (No. 2): ECHR 30 Mar 2004

(Commission) The prisoner alleged that the denial of his right to vote whilst in prison was disproportionate. He was serving a life sentence for manslaughter.
Held: The denial of a right to vote was in infringement of his rights and disproportionate. Different signatory countries had applied different standards. The UK law made a great distinction between different categories of offender or crime, but did not apply the same rules to prisoners on remand or imprisoned for non-payment of fines or contempt. There was no evidence of the issues having been considered by parliament in a way which took account of the issues of human rights.
74025/01, Times 08-Apr-2004, (2004) 38 EHRR 825, [2004] ECHR 122
Bailii, Bailii
Representation of the People Act 1983 3, European Convention on Human Rights A3-1
Human Rights
Citing:
Appeal fromRegina (Pearson Martinez and Hirst) v Secretary of State for the Home Department and Others; Hirst v Attorney-General QBD 17-Apr-2001
A law which removed a prisoner’s right to vote whilst in prison was not incompatible with his human rights. The implied right to vote under article 3 was not absolute, and states had a wide margin of appreciation as to how and to what extent the . .

Cited by:
CitedNilsen v HM Prison Full Sutton and Another CA 17-Nov-2004
The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights. . .
At CommissionHirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
At CommissionHirst v The United Kingdom ECHR 3-Dec-2009
(Resolutions) The court noted the long delay in the respondent in implementing the judgment of the court and giving prisoners voting rights, the present consultation and adjourned until March 2011 for further information. . .
CitedTigere, 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 . .

These lists may be incomplete.
Updated: 14 February 2021; Ref: scu.195514

A v United Kingdom: ECHR 1980

The Commission declared admissible a complaint from a Broadmoor patient who had been secluded for five weeks after a fire. A friendly settlement was reached, without admission of liability but on the basis that new guidelines for the use of seclusion would be issued, as indeed they were.
(1980) 3 EHRR 131
Human Rights
Cited by:
CitedMunjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested; CA 16-Jul-2003
The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not . .

These lists may be incomplete.
Updated: 12 February 2021; Ref: scu.185209