DATABASE OF CASES UNDER THE HUMAN RIGHTS ACT 1998

Claire O'Brien & Janet Arkinstall *

Please note that the Human Rights Act Research Project concluded its work in September 2002. Although correct at the time of writing, some of the information on these webpages (for example the database of cases under HRA 1998) is therefore historical and should not be considered as representing the present state of the law.

Ward v Hillingdon London Borough Council
ILR 26/3/2001 (2001) HRLR 40

15 February 2001

High Court (Queen's Bench Division)

Stanley Burton J

Judicial review (substantive hearing)

Public order

Article 6,  Article 7,  Article 8,  Protocol 1 Article 2

ss77 & 78 Criminal Justice & Public Disorder Act 1994

On facts: 1) removal under s77(1) justified under Art 8(2): Chapman v UK (2001) 10 BHRC 48 (even though no planning issue in play); 2) Prot 1 Art 2 not engaged. Court would not consider compatibility of s77(1) with i) Art 6(2), because Council agreed to proceed instead under s78 CJ&POA 1994 ii) Art 7, because Crown not notified as required under HRA 1998

Re Blackspur Group Ltd & Other Companies; Re The Company Directors Disqualification Act 1986

15 February 2001

High Court (Chancery Division)

Sir Andrew Morritt VC

Judicial review (substantive hearing)

Company law - directors

Art 6(1)

Company Directors Disqualification Act 1986

Art 6(1) (requirement for hearing within a reasonable time)

1) Directors’ disqualification proceedings under CDDA 1986 are civil proceedings under Art 6(1); 2) undertaking consenting to determination of disqualification proceedings by Carecraft procedure constituted waiver of ECHR rights; 3) court would not release applicant from such undertaking except on grounds sufficient to justify avoidance of contract

National Union of Rail, Maritime and Transport Workers v London Underground & Others
2001 EWCA Civ 211 TLR 7/3/2001 (2001) IRLR 228

16 February 2001

Court of Appeal

Robert Walker LJ ,  Aldous J ,  Dyson J

Application for leave to apply against injunction

Industrial action

Article 11

ss226A and 234A Trade Union and Labour Relations (Consolidation) Act 1992

Legislation requiring trade union to give notice to employer stating number, category/ workplace of employees/ members of the trade union is not oppressive or disproportionate for Art 11 purposes

R v Secretary of State for the Home Department ex parte (1) Carroll (2) Al-Hasan
2001 EWHC Admin 110 (2001) HRLR 706

16 February 2001

High Court (Admin)

Newman J

Judicial review (substantive hearing)

Prisoners

Article 5,  Article 6,  Article 8

s47 Prison Act 1952

Rule 39 Prison Rules 1964

(i) Reasonable suspicion must exist when issuing order for prisoners to squat; (ii) disciplinary adjudication before the prison governor does not constitute proceeding within meaning s22(4) HRA so that HRA has no retrospective application to pre-Oct 2000 disciplinary adjudication; (iii) necessary that penalty imposed by disciplinary proceedings be proportionate to its character as a penalty for disciplinary offence; (iv) imposing additional days did not make disciplinary proceedings “criminal”

R (Bulger) v Secretary of State for the Home Departmnet and the Lord Chief Justice of England and Wales
2001 EWHC Admin 119

16 February 2001

High Court (Administrative)

Rose LJ ,  Penry-Davey J ,  Sullivan J

Judicial Review

Crime - sentencing

Art 6(1),  Article 5

s 53 Children and Young Persons Act 1933; s 82A Powers of Criminal Courts (Sentencing) Act 2000

Practice Statement (Life Sentences for Murder) (2000) 1 WLR 1655

As both English and European authorities (R v SSHD ex p. Venables and Thompson, V v UK) supported the view that in fixing a tariff in respect of a child the sentencing court can and must take into account matters in relation to rehabilitation, held that applicant's argument that welfare/rehabilitation considerations may only be taken into account when setting tarriff at time of trial was unsustainable

HM Attorney-General v Covey; Same v Another
LTL 2/3/2001 TLR 2/3/2001

19 February 2001

Court of Appeal

Lord Woolf CJ ,  Jonathan Parker LJ ,  May LJ

Renewed applications for leave to appeal against civil proceedings orders under s42 Supreme Court Act 1981

Access to justice,  Civil procedure - vexatious litigation

Article 6

s42 Supreme Court Act 1981

i) S42 SCA 1981 extends beyond vexatious litigants in the section’s literal sense of repeatedly targeting litigation at the same persons, to those repeatedly litigating against a variety of targets; ii) Art 6 does not preclude all civil proceedings orders against such litigants so long as orders comply with Art 6(1); iii) as regards bench memoranda, Art 6 does not alter the position described in Parker v Law Society [1999] COD 183

Re B (a Child)
2001 EWCA Civ 347

20 February 2001

Court of Appeal

Thorpe LJ ,  Hale LJ

Appeal from County Court Adoption Proceedings

Family - adoption

Article 8

The county court judge’s complete lack of regard to the article 8 rights of the father was one of three equally compelling submissions on behalf of the father leading to the overturning of the decision.

R(K) v Camden & Islington Health Authority
(2001) 3 WLR 553 (2001) UKHRR 1378 LTL 21/2/2001 TLR 15/3/2001 (2001) Lloyd's Rep. Med 152

21 February 2001

Court of Appeal

Buxton LJ ,  Lord Phillips MR ,  Sedley LJ

Judicial review (substantive hearing) / guidance

Mental health

Article 5

ss73, 117 Mental Health Act 1983 (implementation of conditions of deferred conditional discharge)

i) No absolute duty on health authorities to comply with conditions of deferred conditional discharge; ii) statutory scheme as interpreted in Campbell v SSHD [1988] 1 AC 120 may be incompatible with requirements of Art 5 ECHR, as per Johnson v UK (1997) 27 EHRR 296

R (Count Franz von Brandenburg) v East London & City Mental Health NHS Trust & Another
TLR 28/2/2001 (2001) 3 WLR 588

21 February 2001

Court of Appeal

Buxton LJ ,  Lord Philiips MR ,  Sedley LJ

Judicial review (appeal)

Mental health

Article 5

ss2-4, Mental Health Act 1983 (i) legality of immediate readmission under MHA 1983 following MHRT decision to discharge; ii) whether detaining authority required to show relevant intervening change of circumstances justifying readmission)

i) R v Managers of South Western Hospital ex parte M (1993) QB 983 overruled; a recent MHRT decision to discharge a patient would always be an important relevant consideration in a decision to readmit; however ii) no statutory requirement on detaining authorities to show a relevant change of circumstances intervening between order to discharge and decision to readmit; judicial review provided adequate remedies for any unlawful admission

Mouat v Director of Public Prosecutions; R (Ebrahim) v Feltham Magistrates’ Court
2001 EWHC Admin 130 T.L.R. 27/02/2001 (2001) 1 WLR 1293

21 February 2001

High Court (Administrative)

Brooke LJ ,  Morison J

Judicial review (substantive hearing) and appeal by way of case stated

Crime - procedure

Article 6

Code of Practice pursuant to ss.23 & 25 Criminal Procedure and Investigations Act 1996

Attorney-General’s Guidelines 29/11/2000

Abuse of process in criminal matters

Consolidation of guidelines on applications to stay for abuse of process arising from non-collection or destruction of video evidence: 1) Court to ask itself whether investigator/ prosecutor was under duty to obtain/ retain evidence? 2) If there was a duty which was breached, when exercising discretion to order stay courts to bear in mind that fair trial involves fairness to both sides i.e. defence and prosecution

R v Home Secretary ex parte Greenfield
LTL 22/2/2001 TLR 6/3/2001 ILR 2/4/2001 (2001) HRLR 35 (2001) 1 WLR 1731

22 February 2001

High Court (Queen's Bench Division (Divisional Court))

Latham J ,  Potts J

Judicial review (substantive)

Disciplinary proceedings,  Prisoners

Article 5,  Article 6

ss33 & 42 Criminal Justice Act 1991

Prison Rules 1999 SI 1999/728

(i) Disciplinary proceedings for drug-taking in prison do not amount to criminal charges for the purposes of Art 6(1) & (3); (ii) additional days awarded as result of disciplinary proceedings are part of the period of sentence that prisoner has to serve before release; original sentence remains justification for detention under Art 5(1)(a)

R (Anderson & Taylor) v Home Secretary

22 February 2001

High Court (QBD)

Rose LJ ,  Penry Davey J ,  Sullivan J

Judicial review (substantive hearing)

Crime - sentencing

Article 6

s29(1) Crime (Sentences) Act 1997

(i) Parliament has by primary legislation given Home Secretary powers to set mandatory lifers’ tariff, which has been approved by HL; ii) distinction between discretionary and mandatory sentences upheld by ECtHR for Art 5(4) purposes (Wynne v UK (1994) 19 EHRR 333) and relevant to Art 6; (iii) tariff setting exercise by Home Secretary not judicial but an administrative act; accordingly Art 6 not engaged

Gallagher v Castle Vale Action Trust Limited
2001 EWCA Civ 944

23 February 2001

Court of Appeal

Blackburne J ,  Schiemann LJ ,  Sedley LJ

Appeal (County Court)

Housing

Article 8

ss 84 & 85 & Schedule 2 Housing Act 1985

In deciding whether “reasonable” to make non-suspended possession order in respect of secure tenancy, where nuisance alleged, judge to take account of tenant’s right to respect for home, balanced against necessity of eviction to protect rights of others

Shanshal v Al-Kishtaini
2001 EWCA Civ 264 TLR 8/3/01 (2001) 2 All ER (Comm) 601

23 February 2001

Court of Appeal

Holman J ,  Mummery LJ ,  Rix LJ

Appeal

Civil procedure

Protocol 1 Article 1

Emergency Laws (Re-enactments and Repeals) Act 1964

Control of Gold, Securities, Payments and Credits (Republic of Iraq) Directions (SI 1990 No 1616)

Doctrine of illegality of contract

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Henderson v Chief Constable of Cleveland Constabulary
(2001) 1 WLR 1103

27 February 2001

Court of Appeal

Lord Woolf CJ ,  Mance LJ ,  May LJ

Appeal from County Court

Police

Article 5

Magistrates Courts Act 1980 (execution of warrants issued for arrest in default of payment of fine)

Police officer has public law discretion as to timing of execution of warrants, subject to i) Wednesbury review and ii) compliance with Art 5 ECHR on the facts of the individual case

R (Mitchell) v Coventry University (Secretary of State for Education and Employment intervening)
2001 EWHC Admin 167 (2001) ELR 594

02 March 2001

High Court (Queen's Bench Division (Admin))

Collins J

Judicial review (substantive hearing)

Education

Article 14,  Protocol 1 Article 2

Discrimination; Reg 8(3) Education (fees and awards) Regulations 1997

There is no violation of Art 14 in the differential treatment of a British citizen with right of abode in UK who resided in Hong Kong prior to enrolment at university and therefore has to pay “overseas student” fees, and citizens of British dependant territories who resided in Hong Kong prior to university and by virtue of transitional Reg8(3) are entitled to pay “home student” fees, even after Hong Kong’s change of status in 01.07.99 whereupon the citizens of British dependant territories became British citizens Striking out for witness immunity was: i) required by domestic and ECHR law to be proportionate to the public interest in protecting judicial process; ii) not distinguishable in principle from the issue of whether liability was “fair, just and reasonable” iii) not to be used to shield police from suit as law enforcers/investigators Domestic law criteria for dealing with applications for leave by litigants subject to civil proceedings order not affected by HRA; power to grant leave under s.42 SCA 1981 belongs exclusively to the High Court

R (Morgan Grenfell) v Special Commissioner for Tax
TLR 17/4/2001 (2002) 2 WLR 255 (2002) 1 All ER 776

02 March 2001

Court of Appeal

Schiemann LJ ,  Blackburne J ,  Sedley LJ

Appeal from refusal of application for judicial review in R (on the application of Morgan Grenfell v A Special Commissioner for Tax (TLR 22.11.00)

Legal professional privilege,  Taxation - procedure

Article 8

Taxes Management Act 1970, ss20(1) & (7)

i) Principle of legality allows for exegesis by the court where legislation cast in broad and unspecific language, even in cases involving fundamental rights; ii) taking TMA 1970 as whole, s20(1) to be read as excluding LPP except where expressly preserved; iii) consequent abrogation of rights to respect for private life and correspondence justified under Art 8(2) in pursuit of national economic well-being iv) Commissioner had no power to allow taxpayer to make oral representations against a notice under s20(1)

Jones v Greater Manchester Police Authority
2001 EWHC Admin 189 (2002) ACD 4

02 March 2001

High Court (Queen's Bench)

Latham LJ ,  Astill J

Appeal by way of case stated

Antisocial behaviour/sex offender orders

Art 6(1),  Art 6(2),  Art 6(3)

s 2(1) Crime and Disorder Act 1998

1) Sex offender orders are civil, not criminal, proceedings following B v Chief Constable of Somerset and Avon Constabulary [2001] 1 WLR 34, therefore Art 6 not breached by admission of expert evidence of paedophile propensity in application for order; 2) interference with Art 8 rights from admission of evidence is proportionate

Russell & others v Home Office

02 March 2001

High Court (Queen’s Bench Division)

Crane J

Action for damages for assault

Tort

Article 3

Criminal Law Act 1967

Prison Rules 1964

Exemplary Damages (Art. 3)

1) Breach of Art. 3 during re-capture did not necessarily entitle prison escapees to exemplary damages: positive obligation on state to ensure effective deterrence through criminal sanctions (X and Y v Netherlands) did not extend to automatic use of exemplary damages to provide a penalty

Mayor & Burgesses of London Borough of Lambeth v Howard

06 March 2001

Court of Appeal

Sedley LJ ,  Hale LJ ,  Thorpe LJ

Appeal from County Court

Housing

Article 6,  Article 8

Housing Act 1985, s84 & Part 1 of Schedule 2 (outright / suspended possession orders)

1) Order for outright possession required to be compatible with Art 8 and test for justification of interference with Art 8(1) as described in Johns & McLellan v Bracknell Forest DC (21 Dec 2000); 2) maintaining freedom from fear and right to live in peace legitimate aims under Art 8(2)

DPP v Wilson
TLR 21/3/2001 (2002) RTR 37

07 March 2001

High Court (QBD (Divisional Court))

Sullivan J ,  Rose LJ

DPP’s appeal by way of case stated

Crime - evidence

Art 6(1)

s172(2)(b) Road Traffic Act 1988

Brown v Stott (Procurator Fiscal) (PC, 05.12.00)

(i) No distinction between s172(2)(a) (keeper of the car to provide driver’s identity –relevant section in Brown) and s172(2)(b) (any other person to give information leading to driver’s identification); (ii) Brown followed: admission of defendant’s response not incompatible

R (Wardle) v Leeds Crown Court
2001 UKHL 112 TLR 13/3/01 (2001) 2 WLR 865

08 March 2001

House of Lords

Lord Hope ,  Lord NIcholls ,  Lord Scott ,  Lord Clyde ,  Lord Slynn

Judicial Review (appeal)

Crime - procedure

Article 5

S 22 (3) Prosecution of Offences Act 1985 Reg. 4 Prosecution of Offences (Custody Time Limits) Regulations 1987

No breach of Art 5(1) or (3), or abuse of process in new custody (remand) time limit commencing with substitution of a manslaughter with murder charge, on the same facts: procedure imposing new limit was prescribed by law; served legitimate aim (allowing prosecution time to prepare evidence) and subject to judicial control

L & P v (1) Reading Borough Council (2) Chief Constable Thames Valley Police
LTL 12/3/2001 (2001) 2 LFR 50 (2001) 1 WLR 1575

12 March 2001

Court of Appeal

Otton LJ ,  Keene LJ ,  Maurice Kay LJ

Appeal from order striking out civil actions against the second defendant

Civil procedure,  Tort - negligence

Article 6

Parts 3.4 and 24.2 CPR

Striking out for witness immunity was: i) required by domestic and ECHR law to be proportionate to the public interest in protecting judicial process; ii) not distinguishable in principle from the issue of whether liability was “fair, just and reasonable”; iii) not to be used to shield police from suit as law enforcers/investigators

Fakhar Al Zaman Lohdi v (1) Governor of HMP Brixton and (2) the Government of United Arab Emirates
2001 EWHC Admin 178

13 March 2001

High Court (Administrative)

Brooke LJ ,  Morison J

Habeas Corpus

Extradition

Article 3,  Article 6

s 6 & 11 Extradition Act 1989

1) Exceptionally, risk of flagrant denial of justice in requesting country may mean that act of extradition itself breaches Art. 6 (on facts no such risk here); 2) Art. 6 rights (including disclosure) inapplicable in extradition proceedings (HRA 1998 did not alter position in R v Governor of Pentonville Prison ex p. Lee {1993} 1 WLR 1294; Kirkwood v UK 6 EHRR 373)

Ebert v Official Receiver & Others
(2001) 3 All ER 942 (2001) ACD 359 (2002) 1 WLR 320

14 March 2001

Court of Appeal

Buxton LJ ,  Chadwick LJ

Application for permission to appeal to CA

Civil procedure - vexatious litigation

Article 6

s42 Supreme Court Act 1981

Application 11559/85 H v UK (1985) 45 D&R 281; A-G v Matthews (TLR 02.03.01)

Domestic law criteria for dealing with applications for leave by litigants subject to civil proceedings order not affected by HRA; power to grant leave under s.42 SCA 1981 belongs exclusively to the High Court